FIFTH SECTION
DECISION
Application no. 49278/09
Stuart and Rory GRAY
against Germany and the United Kingdom
The European Court of Human Rights (Fifth Section), sitting on
18 December 2012 as a Chamber composed of:
Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ann Power-Forde,
Paul Lemmens,
Helena Jäderblom,
Paul Mahoney, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 10 September
2009,
Having regard to the information transmitted by the German
Government on 24 November 2011 in reply to the Court’s related request of
2 November 2011,
Having deliberated, decides as follows:
THE FACTS
The applicants, Messrs Stuart and Rory Gray, are
British nationals and brothers. Mr Stuart Gray (the “first applicant”), a
doctor, lives in Blakedown, United Kingdom, whereas Mr Rory Gray (the “second
applicant”), a businessman, lives in Darmstadt, Germany. They are represented
before the Court by Mr T. Hall, a lawyer practising with Anthony Collins
Solicitors LLP, Birmingham.
A. The circumstances of the case
The facts of the case, as submitted by the
applicants and supplemented by information provided by the German Government in
reply to the Court’s related request dated 2 November 2011, may be
summarised as follows.
1. Background to the case
The applicants are the sons of the late David
Gray (hereinafter referred to as “Mr Gray” or “the deceased”) who died in the
evening of 16 February 2008 at the age of 71 at his home in Cambridgeshire, United Kingdom.
Mr Gray suffered from kidney stones and from 2004
had regularly been attended at home by his doctor, a General Practitioner
(“GP”) working for the United Kingdom’s National Health Service (“NHS”) which
is represented at local level by NHS Primary Care Trusts (“PCTs”), in the
instant case by Cambridgeshire NHS Primary Care Trust (“Cambridgeshire PCT”).
The GP had routinely administered injections of opiates, in particular
pethidine at a dosage of 100mg, for pain relief. On several occasions between
2006 and 2008 Mr Gray had recourse to out-of-hours medical services by “Take
care Now” (“TCN”), a private agency that recruits locum doctors within the
United Kingdom or from abroad to supply out-of-hours medical care for several
PCTs, including the Cambridgeshire PCT. Out-of-hours services concern the
periods outside business hours of GP surgeries on weekdays as well as weekends
and bank holidays.
Since TCN clinicians do not routinely carry
pethidine, the deceased had on some of these occasions been injected with 10mg
doses of the opiate diamorphine, contained in a sealed palliative care box TCN
doctors were provided with for the purpose of home visits at that time. Such
palliative care boxes were stocked with 10mg and 30mg vials of diamorphine for
acute pain relief together with a much larger ampoule of 100mg intended for
patients receiving palliative care. Attached to each box was a list of the
drugs contained as well as a form with instructions for doctors, and inside a
document that listed the relative potencies of the drugs.
In 2006 the NHS’ National Patient Safety Agency
(“NPSA”) issued a safer practice notice following a number of reports of deaths
due to injections of patients with 30mg or higher doses of diamorphine. It emphasised
the risks resulting from the similar packaging of different strengths of
diamorphine ampoules and pointed out that the concerned health staff was not
sufficiently trained as regards the precautions to be observed when
administering higher doses of morphines. The NPSA therefore called on the NHS
organisations concerned to assess their procedures for the labelling, storing
and administering of controlled drugs.
In 2007 two incidents were reported where TCN
doctors had administered overdoses of diamorphine from palliative care boxes to
patients on two separate occasions. Both cases involved doctors working
out-of-hours shifts for TCN who had trained and practised in Germany and who had erroneously administered the 30mg diamorphine vial from the palliative
care box to their patients for acute pain relief. On both occasions the
patients’ lives could be saved by injection of an antidote following their
transfer to hospital. In view of these incidents, the TCN head of clinical
governance circulated a discussion paper in January 2008 proposing the
introduction of a referee system, whereby a doctor cannot open the care boxes
without permission from the duty manager at base. He further advised that the
different dosages of diamorphine should be kept separate and that boxes for the
provision of acute pain relief separate from the palliative care boxes should
be introduced.
On Saturday 16 February 2008 Mr Gray developed a
severe renal colic. In the afternoon his partner contacted the TCN call centre
to arrange for an urgent home visit by a doctor. She explained Mr Gray’s
medical history to the TCN clinician who carried out the first telephone triage
consultation and specified what medication Mr Gray had received on the occasion
of previous home visits. The case was then assigned to doctor U., a German
national, who had recently been recruited by TCN through an agency on a
self-employed basis to provide out-of-hours care. U., at the time aged 65, had
qualified as a doctor in Germany in 1972 where he was practising as an
aesthetic surgeon but where he was also formally qualified as a GP. For the
purpose of working as a locum doctor in the United Kingdom he had obtained
registration with the British General Medical Council (GMC) in 2006 and had
applied to be admitted to one of the Medical Performers Lists maintained by
each of the local PCTs. Once a GP is admitted to a PCT’s Performers List he may
work in the area of any other PCT in England. U. had withdrawn a first
application to join Leeds Performers List after being notified that he had not
reached a sufficient score in the required English language test. However, the Cornwall and Isles of Scilly PCT authorities, unaware that U. had already tried to
register with another PCT, approved a subsequent application and admitted him
to their Performers List in July 2007 without verifying his English language
skills.
U. arrived in the United Kingdom on Friday, 15 February
2008 for his first shift as a locum doctor scheduled for the coming weekend.
According to an induction report established by a TCN doctor on 15 February
2008 there had not been sufficient time to assess U.’s professional competence
prior to his first assignment the next day.
U. attended Mr
Gray at his home in the late afternoon of 16 February 2008. He was told by Mr
Gray and his partner that in similar situations in the past he had either
received injections of 100mg of pethidine for acute pain relief or, where the
out-of-hours services did not carry pethidine, had been treated with diamorphine.
U. administered 100mg of diamorphine from the respective ampoule included in
the palliative care box by intra-muscular injection. Some two hours after
U. had left, Mr Gray’s partner realised that he was no longer breathing and
called an ambulance. The attending emergency services confirmed that Mr Gray
had died. The police was informed and attended on-site.
On Sunday 17 February 2008 TCN suspended U. from
duty, terminated his engagement with immediate effect and advised him to return
to Germany where he arrived the following day. Subsequently, two other
incidents were reported where U. on the occasion of home visits on
16 February 2008 had failed to administer the appropriate medical
treatment.
On 29 February 2008 U. returned to London to attend a hearing before the GMC in connection with the incidents on 16 February
2008. By an order of the same date, the GMC suspended the applicant from the
British medical register on an interim basis.
On 4 March 2008 U. informed the competent public
health authorities at the Arnsberg District Government (Bezirksregierung),
Germany, and by letter of 11 March 2008 his German professional indemnity
insurance of the incident. He explained that when treating the deceased he had
committed a grave mistake with fatal outcome that had resulted from the
confusion between the drugs pethidine and diamorphine, the latter being a drug
not used by on-call services in Germany and with which he had been unfamiliar.
On the day of the incident he had further been overtired following his journey
from Germany to the United Kingdom and had found himself in a tremendous stress
situation.
By a letter of 17 April 2008 in reply to a
complaint lodged by the first applicant following his father’s death, TCN
confirmed that U. had satisfied the requirements generally expected from locum
doctors working for the TCN and had completed the compulsory induction process
all clinicians had to undergo before they could be assigned to clinical shifts.
A post mortem report issued on 25 June 2008 by a
forensic pathologist in the United Kingdom established as cause of Mr Gray’s
death diamorphine poisoning in association with alcohol intoxication as well as
hypertensive heart disease and myocardial fibrosis. The report further stated
that the diamorphine injection had more than minimally contributed to the death
and that in view of the large dose administered there was no need to
necessarily invoke the additional effect of alcohol in causing death.
By a letter of 10 July 2008 to the deceased’s
partner and the first applicant, U. apologised for the medical malpractice in
connection with the deceased’s treatment and again explained that he had
confused the opiates and referred to the stress situation he was subject to
when making the mistake.
On 8 August 2008 the applicant attended a
further hearing before the GMC in London where his suspension from the medical
register was confirmed.
It appears that shortly following Mr Gray’s
death TCN put in place a referee system requiring that permission be obtained
from the duty manager at base before an on call doctor is entitled to open the
palliative care box. Subsequently pain relief boxes separate from the
palliative care boxes were introduced and in a further step the 100mg doses of
diamorphine were removed from the palliative care boxes.
2. The criminal proceedings instituted against U. in
the United Kingdom and Germany
Following Mr Gray’s death the Cambridgeshire
police commenced criminal investigations against U. for manslaughter by gross
negligence.
On 5 March 2008 Cambridgeshire
Constabulary, through Interpol London, made an application for assistance to
the German Federal Office of Criminal Investigation (Bundeskriminalamt)
requesting in particular the supply of data with respect to U.’s personal
record and past professional career. The request was forwarded to the competent
Bochum police department which provided the Cambridgeshire police with the
requested information and documentation by mid-March 2008.
On 21 April 2008 the English Crown Prosecution
Service (CPS) sent a formal Letter of Request to the Ministry of Justice of the
Land North Rhine-Westphalia, Germany, in accordance with the European
Convention on Mutual Assistance in Criminal Matters 1959, requesting assistance
in obtaining information with respect to U.’s medical qualifications and the
authenticity of the related certificates submitted by him to the British
authorities when applying to be admitted as a locum doctor. The letter gave a
short summary of the circumstances of Mr Gray’s death and specified that while
no criminal proceedings had yet been instigated in the United Kingdom, the
offence investigated constituted manslaughter, i.e. the unlawful killing of a
human being, an offence contrary to Common Law and punishable on conviction by
a term of life imprisonment. The CPS asked the German authorities to carry out
the respective investigations and to arrange for hearings of the relevant
witnesses in Germany in the presence of representatives of Cambridgeshire
Constabulary.
The request was forwarded by the North
Rhine-Westphalia Ministry of Justice to the Hamm General Prosecution
Authorities (Generalstaatsanwaltschaft) as well as to the locally
competent Bochum prosecution authorities. By a decision of the Bochum Chief
Public Prosecutor (Oberstaatsanwalt) of 6 June 2008 the request for
assistance was granted and by letter of the same date the Bochum police
department was informed accordingly and invited to provide the requested
assistance and to coordinate any future investigation measures with
Cambridgeshire police.
Simultaneously, the Bochum Chief Public
Prosecutor ex officio initiated preliminary criminal proceedings (Ermittlungsverfahren)
against U. in Germany under file no. 49 Js 174/08 on suspicion of having
negligently caused the death of Mr Gray pursuant to Article 152 § 2
of the German Code of Criminal Procedure in conjunction with Articles 222
and 7 § 2 no. 1 of the German Criminal Code (see Relevant
domestic law below). In a letter of the same date the Chief Public Prosecutor
instructed the Bochum police to conduct the necessary investigations also in
respect of the domestic preliminary proceedings, in particular to interview the
suspect U. He further explicitly invited Bochum police to permit the presence
of English police officers also on the occasion of such interview.
In accordance with the Letter of Request dated
21 April 2008, Cambridgeshire police officers visited Germany on several occasions in the period from July until September 2008 and were provided
with assistance by the German police in their investigations against U. The
investigations focussed on the authenticity of the certificates U. had submitted to the English health authorities as evidence of his medical qualifications as
well as on the question whether U.’s treatment of the deceased had amounted to
medical malpractice. At the request and in the presence of officers of
Cambridgeshire police, German police officers heard, inter alia,
representatives of U.’s professional liability insurance, of the public health
authorities at the Arnsberg District Government (Bezirksregierung) and
the Westphalia-Lippe Medical Association (Ärztekammer) as witnesses. The
originals of the protocols of the witness hearings conducted as well as the
material obtained in the course of the investigations were handed over to
Cambridgeshire police. On 10 July 2008 German and British police officers
visited U. at his surgery in Witten, Germany, and informed him that criminal
investigations were pending against him in Germany and the United Kingdom. U. availed himself of his right not to testify. He also declined a subsequent
request by the Cambridgeshire police to be interviewed in the United Kingdom.
Furthermore, at the request of the
Cambridgeshire Constabulary a forensic expert opinion was obtained from a
professor of Essen university hospital on the question whether the treatment of
the deceased by U. had complied with medical standards. The expert established
his report on the basis of the information contained in the Cambridgeshire
police’s investigation files. He presented his preliminary findings to
representatives of Cambridgeshire Constabulary on the occasion of one of their
visits to Germany in September 2008. In his final report issued on 18 September
2008 the expert confirmed that the cause of Mr Gray’s death had been an
overdose of diamorphine. He pointed out that notwithstanding the fact that the
therapeutical use of diamorphine was in general not permitted in Germany and
therefore doctors in Germany were as a rule not trained in its use, U. had not
sufficiently investigated the cause of Mr Gray’s acute pain and had not
verified whether the medication administered and its dosage had been an
appropriate therapy under the circumstances. The expert concluded that U.’s
treatment of the deceased had thus been inadequate and had violated basic
principles of medical care.
According to a file note by a Bochum police
officer of 23 September 2008, the Cambridgeshire police, for their part, had
provided their German counterparts upon request with certain documents for use
in the preliminary proceedings conducted against U. in Germany, namely with the
post mortem report of 25 June 2008 as well as protocols of statements made by
Mr Gray’s partner following the latter’s death.
By a letter of 1 October 2008 counsel for the
second applicant practising in Germany informed the Bochum prosecution
authorities that his client was the son of a patient who had possibly been
killed by U. on 16 February 2008 through medical malpractice. Counsel
asked for information whether preliminary criminal proceedings were pending
against U. and, should this be the case, requested access to the relevant
investigation files. By a letter of 23 October 2008 counsel for the second
applicant reiterated his request for information whether preliminary
proceedings had been instituted against U. Pursuant to a file note by the
Bochum public prosecution authorities dated 30 October 2008 counsel was
informed about the pending preliminary proceedings and forwarded copies of
excerpts of the investigation file such as the forensic expert opinion of
18 September 2008 and the letter of March 2008 by which U. had notified
the incident to his professional liability insurance.
By a letter dated 6 November 2008,
Cambridgeshire Constabulary, referring to a telephone conversation of the
previous day, requested the German public prosecution authorities to assure
that no criminal proceedings would be instituted against U. in Germany prior to
finalisation of the investigations in the United Kingdom and that none of the
information gathered in the course of the investigations carried out jointly by
German and British police officers on the occasion of their visits to Germany would
be disclosed to U., Mr Gray’s relatives or their respective counsel. According
to a file note by the Bochum public prosecution authorities of 5 November 2008,
the German prosecution authorities had informed Cambridgeshire Constabulary in
reply to a similar request made over the phone that day that they had been
obliged by operation of law to institute preliminary criminal proceedings
against U. in Germany and that they were also obliged under German criminal
procedure to grant counsel for the accused as well as counsel for the victim’s
relatives acting as joint plaintiffs to the prosecution (Nebenkläger)
the right to inspect the files in such preliminary proceedings.
On 6 November 2008, German counsel for the
second applicant, referring to the preliminary proceedings conducted under file
no. 49 Js 174/08 against U., transmitted the latter’s apology
letter of 10 July 2008 to the deceased’s partner and the first applicant as
well as the TCN’s letter to the first applicant dated 17 April 2008 to the
Bochum prosecution authorities for inclusion in the investigation file.
On 27 February 2009 an arrest warrant was issued
against U. by the Huntingdon Magistrates’ Court, Cambridgeshire. On 12 March
2009 the Colchester Magistrates’ Court issued a European Arrest Warrant (”EAW”)
against U. for allegedly having caused the death of Mr Gray with an overdose of
morphine.
On the same day, 12 March 2009, the Bochum Chief
Public Prosecutor ordered that the preliminary criminal proceedings against U.
be terminated and applied to the Witten District Court for a penal order (Strafbefehl)
to be issued against U. convicting him of having caused Mr Gray’s death
through negligence pursuant to Article 222 of the Criminal Code and imposing a
suspended prison sentence of 9 months as well as a fine of 5,000 euros (EUR). A
draft of the penal order was attached to the application. Following previous
discussions with the public prosecution authorities, U., represented by
counsel, had declared that he would accept the envisaged sentence.
The Chief Public Prosecutor’s assessment of the
facts of the case and U.’s guilt set out in the draft penal order relied on the
circumstances of the case as reflected in the deceased partner’s statements
following the incident, the post mortem report of 25 June 2008, the forensic
expert opinion of 18 September 2008, the explanatory letter by TCN to the
first applicant of 17 April 2008, U.’s notification to his professional
liability insurance dated 11 March 2008 as well as his apology letter to
the deceased’s family of 10 July 2008. The Chief Prosecutor found that
while the fact that U. did not have a criminal record, had made a full
confession and had apologised to the victim’s relatives had to be considered in
his favour and notwithstanding the fact that an ampoule with a fatal dose of
morphine had been included in the care box, U. had nevertheless committed a
grave error in the deceased’s treatment and had thus violated basic principles
of the medical profession.
On 13 March 2009 the EAW was forwarded by the
British authorities to the German Federal Office of Criminal Investigation.
By email of 17 March 2009 the Cambridgeshire
police asked the Bochum public prosecution authorities for information about
the procedure to be followed by the German authorities after transmission of
the EAW. In their reply of the same day the Bochum public prosecution
authorities specified that the Hamm General Prosecutor (Generalstaatsanwalt)
was the competent authority to deal with questions regarding U.’s extradition
and pointed out that extradition might be hindered on the ground that criminal
proceedings were also pending against U. in Germany. On the occasion of a phone
call later the same day Cambridgeshire police was informed by the Hamm General
Prosecution authorities that execution of the EAW was halted in view of the
criminal proceedings pending against U. in Germany in accordance with section
83b (1) of the Act on International Cooperation in Criminal Matters (see
Relevant domestic and international law below).
On 20 March 2009 the Witten District Court
issued the penal order (file no. 49 Js 174/08) against U. as applied for by the
prosecution authorities. By a decision of the same day, the District Court
determined that the probation period for U. was two years starting from the
date the penal order became final.
By a letter dated 23 March 2009 the CPS asked
the Ministry of Justice of the Land of North Rhine-Westphalia for
information why the EAW had not yet been executed and for clarification whether
any criminal or other proceedings were conducted, pending or envisaged against
U. in Germany as well as for copies of related court decisions.
By fax dated 14 April 2009 newly appointed
counsel for the second applicant practising in Germany asked the Bochum prosecution authorities for information whether the preliminary proceedings against
U. had meanwhile been terminated and whether a bill of indictment had been
issued. Counsel further asked for information whether a possible trial was to
be conducted in Germany or in the United Kingdom. He finally requested to be
granted access to the files in the proceedings under file no. 49 Js 174/08. It
follows from a subsequent letter by counsel dated 19 May 2009 that his request
for inspection of the files was granted. However, it is not clear on what date
between 14 April and 19 May 2009 counsel actually obtained access to the file.
On 15 April 2009, no appeal having been lodged
by U., the penal order of 20 March 2009 became final in accordance with Article
410 of the German Code of Criminal Procedure (see Relevant domestic and
international law and practice below).
By written submissions dated 6 May 2009 the Hamm
General Prosecution Authorities (Generalstaatsanwaltschaft) requested
the Hamm Higher Regional Court (Oberlandesgericht) to declare U.’s
extradition to the United Kingdom inadmissible since U. had been convicted by
final decision of a German court for the offence underlying the extradition
request and the sentence imposed upon him was currently in the process of being
executed. His extradition would therefore be contrary to the ban on double
jeopardy as reflected in section 9 (1) no. 1 of the Act on Cooperation in
Criminal Matters as well as Article 3 no. 2 of the Council Framework Decision
of 13 June 2002 on the European arrest warrant and the surrender procedures
between Member States (2002/584/JI) (see Relevant domestic and international
law and practice below).
By a decision of 14 May 2009 ((2) 4 Ausl A 49/09
(134/09)) the Hamm Higher Regional Court, endorsing the reasoning of the Hamm
General Prosecution Authorities, declared U.’s extradition inadmissible.
By a letter of 27 May 2009 the Hamm Chief
Prosecutor communicated the Higher Regional Court’s decision to the Colchester
Magistrates’ Court in Chelmsford, United Kingdom.
By a letter of the same day the Bochum Chief
Public Prosecutor, in reply to the CPS’s information request of 23 March 2009,
explained that he had been obliged by operation of domestic law to instigate
criminal investigations against U. after having learned of the circumstances of
Mr Gray’s death through the CPS’s request for assistance dated 21 April
2008. He specified that the domestic proceedings had meanwhile been terminated
and that U. had been convicted by a final decision of the Witten District Court
for having negligently caused Mr. Gray’s death. A copy of the related penal
order of 20 March 2009 was attached to the letter.
On 1 July 2009 a meeting between the representatives
of the Bochum prosecution authorities, the CPS and Cambridgeshire police took
place at Eurojust in The Hague with a view to providing explanations on the
conduct of the criminal investigations and proceedings in Germany. The content of these discussions is confidential.
In August 2009 and April 2010 counsel for the
second applicant was again granted access to the files in the terminated
criminal proceedings against U. under file no. 49 Js 174/08.
As a consequence of the German authorities’
decision not to extradite U., the criminal investigations in the United Kingdom were discontinued.
3. Subsequent
investigations and proceedings against U. in Germany
(a) The proceedings regarding U.’s fitness to
practice medicine before the Arnsberg District Government
After U. had informed the Arnsberg District
Government of Mr Gray’s death in March 2008, the competent District health
authorities commenced investigations regarding U.’s fitness to practice as a
doctor (approbationsrechtliches Verfahren). Within the scope of their
investigations the health authorities, inter alia, conducted interviews
with U. on two occasions in March 2009 and November 2010 with a view to
clarifying the circumstances of the incidents of 16 February 2008 and with a
view to examining U.’s fitness to practice in general. Furthermore, at the
applicants’ request a meeting was arranged between them and representatives of
the Arnsberg District Government on 27 September 2010 on the occasion of which
they provided further information on the circumstances of the case.
Following completion of their investigations by
the end of 2010 the health authorities, considering U.’s professional conduct
over the last 30 years in Germany, the fact that he had committed himself to refrain
from practising medicine abroad in the future and taking into account the
particular circumstances under which U.’s medical malpractice had occurred,
found that there was nothing to establish that U. would commit a similar error
of treatment in Germany or that he lacked the necessary qualifications for
practising medicine. Consequently, the health authorities held that there was
no need to suspend or revoke U.’s licence to practice medicine in Germany and discontinued the proceedings regarding U.’s fitness to practice.
(b) The disciplinary proceedings before the Münster Administrative Court
By written submissions of 15 April 2010 the
Westphalia-Lippe Medical Association applied for the opening of disciplinary
proceedings against U. for breach of his professional duties in connection with
the incidents in the United Kingdom on 16 February 2008.
By a decision dated 27 April 2011 of the
competent Münster Administrative Court (file no. 14 K 791/10.T) sitting in a
special formation as disciplinary jurisdiction for the healthcare professions (Berufsgericht
für Heilberufe) U. was reprimanded for having disregarded the standards of
the medical profession on the occasions of three patient consultations on
16 February 2008 in the United Kingdom, in particular for having committed
a grave error in the treatment of Mr Gray, and fined 7,000 EUR. The decision
became final on 4 June 2011.
4. Subsequent investigations and proceedings against
U. in the United Kingdom
(a) The Inquest and resulting investigations
An Inquest into the circumstances of Mr Gray’s
death was held by the Cambridgeshire Coroner from 14 January to 4 February
2010. U. declined to attend the Inquest. The Coroner found that U., in his
dealings with patients on 16 February 2008, had been incompetent and that his
conduct had not been of acceptable standard. He further pointed out that the
induction process U. had undergone before his first shift as a locum doctor had
been insufficient and inadequate. The Coroner established that Mr Gray had died
as a result of the administration of 100mg diamorphine, a dosage that was
possibly at least 10 times the normal therapeutic level. He concluded that U.’s
actions qualified as gross negligence manslaughter and returned the verdict
that Mr Gray had been unlawfully killed.
The Coroner made a report to the Secretary of
Health under Rule 43 of the Coroners Rules 1984 with a view to preventing a
recurrence of similar fatalities. He suggested, inter alia, to establish
clear criteria regarding the qualifications foreign locum doctors have to meet
before being admitted for out-of-hours services, to provide them with a proper
induction course and to guarantee their monitoring as well as to ensure
supervision of the quality standards of out-of-hours service providers.
(b) The proceedings before the General Medical
Council Fitness to Practice Panel
On the occasion of a meeting from 2 to 18 June
2010, which U. did not attend, the GMC Fitness to Practice Panel further
investigated the circumstances of the incidents of 16 February 2008 and
considered additional evidence obtained from medical expert witnesses, the
deceased’s partner etc. The GMC Fitness to Practice Panel considered that U.
had breached several of the basic principles of good medical practice and
decided to formally strike U.’s name from the medical register in the United Kingdom.
(c) The applicants’ claims for compensation
On 9 June 2009 the applicants brought civil
claims for damages for unlawful killing arising out of negligence with the High
Court against U., TCN as well as Cambridgeshire PCT under section 6 of the
Human Rights Act 1998 together with claims for damages under the Law Reform
(Miscellaneous Provisions) Act (1934). In their written submissions to the
court dated 9 June 2009 the applicants argued in particular that in
administering the 100mg diamorphine dose without any precautions to ensure Mr
Gray’s safety, U. had acted unlawfully and had breached the deceased’s right
under Articles 2 and 8 of the Convention. U. had acted as a servant or agent
for TCN and Cambridgeshire PCT which were thus to be held liable for his
actions. Moreover, all three defendants had failed to ensure that the
precautions required by the relevant provisions of domestic law pertaining to
the supply and use of controlled drugs had been observed.
At the Court’s request by letter of 2 July 2012
to clarify the status of the pending civil proceedings, the applicants replied
on 6 July 2012 that their compensation claims had been settled with respect
to all three defendants by consent orders of December 2009, January and August
2010 respectively on payment of 25,000 pounds sterling (GBP) by U.,
GBP 5,000 by TCN and GBP 10,000 by Cambridgeshire PCT, plus legal
costs in each case. According to the terms of the consent orders, upon payment
of the sums awarded, the defendants have been discharged from all further
liability to the claimants arising out of the subject matter of the claims.
(d) The
inquiry by the House of Commons Health Committee on the use of overseas doctors
in providing out-of-hours services
As a result of the circumstances of Mr Gray’s
death, the House of Commons Health Committee carried out an inquiry and
published a report on 8 April 2010 on “The use of overseas doctors in providing
out-of-hours services”. The report states, inter alia, that under the
system applicable at the time of the events at issue, overseas locum doctors
who were completely unfamiliar with the NHS and its systems could be assigned
to treat patients without a thorough induction training and mentoring process.
Some PCTs had failed in their responsibility to monitor the standards of
out-of-hours care providers. The report emphasised that it was imperative for PCTs
to ensure that contracts with out-of-hours service providers set out rigorous
standards in respect of the recruitment, induction and the training locum
doctors should receive.
(e) The Care Quality Commission’s investigation into
the out-of-hours services provided by TCN
In June 2009 NHS requested the Care Quality
Commission (CQC) to conduct an independent review of the out-of-hours
arrangements with TCN following the death of Mr Gray. The CQC is a public body, overseen by the Department of Health which was established under the Health
and Social Care Act 2008 and began operating on 1 April 2009 in its capacity as
independent regulator of health and adult social care in England. The CQC issued a
first progress report in October 2009 followed by the publication of its final
report in July 2010. The report states that TCN’s systems for medicine
management at the time of the events at issue had been inadequate, leading
among other things to controlled drugs being stored and administered
inappropriately. Furthermore, the induction and training of front line clinical
staff had been poor. The report further denounces that TCN failed to respond
quickly enough to the concerns that emerged from the National Patient Agency’s
alert in 2006 and the two incidents involving overdoses of diamorphine in 2007.
Although these incidents had certain key factors in common, the TCN clinical
governance group had not considered that there was a systemic problem and had
failed to react accordingly. The fundamental changes that might have helped to
prevent similar incidents had only been introduced after Mr Gray’s death. For
instance, the referee system had been introduced the day after Mr Gray had died
only, the introduction of separate pain relief boxes had occurred in
May 2008 and the removal of 100mg diamorphine ampoules from the palliative
care boxes in September 2008. The report further criticizes that the PCTs
standards of commissioning out-of-hour services from TCN and the related
contract and out-of-hours service performance monitoring had been insufficient.
No common approach existed among PCTs as regards the criteria for admission of
GP’s to their respective Performers Lists and the level of scrutiny of
applications to be admitted to such lists had not been equal. Moreover, the
PCTs had failed to systematically monitor the care provided and to ensure that
new performers were familiar with local NHS structures and services.
B. Relevant domestic and international law and
practice
1. Relevant German law in connection with the criminal
proceedings instituted against U.
Pursuant to Article 222 of the German Criminal
Code (Strafgesetzbuch) a person causing the death
of another person through negligence shall be liable to imprisonment of not
more than five years or a fine. Article 12 stipulates that unlawful acts
punishable by a minimum sentence of less than one year’s imprisonment or by a fine
shall be qualified as misdemeanours.
Articles 5 to 7 of the Criminal Code deal with
the jurisdiction of Germany for offences committed abroad. The relevant part of
Article 7 stipulates that German criminal law shall apply to
offences committed abroad if the act constitutes a criminal offence at the
place where it was committed and if the offender was a German national at the
time he committed the offence.
In
accordance with Article 152 of the German Code of Criminal
Procedure (Strafprozessordnung) the public prosecution
authorities shall, as a rule, be obliged to take action in relation to all
prosecutable criminal offences, provided there are sufficient factual
indications that an offence was committed. Article 160 stipulates that as soon as the public prosecution authorities obtain knowledge
of a suspected criminal offence either through a criminal complaint or by other
means it shall investigate the facts to decide whether a bill of indictment is
to be issued.
The rules concerning a conviction
of an offender by penal order are to be found in Articles 407 to 412 of the
Code of Criminal Procedure. Article 407, as far as relevant, provides that in proceedings before the criminal court judge a sentence for an
offence that qualifies as a misdemeanour may be imposed by a written penal
order without a main hearing upon written application by the public prosecution
office. The public prosecution authorities shall file such application, if they
do not consider a main hearing to be necessary given the outcome of the
investigations. The application shall refer to specific legal consequences. It
shall constitute the formal bill of indictment. Only certain
sentences may be imposed for an offence by penal order, such as, inter alia,
a fine or - where the
accused is represented by counsel - imprisonment not exceeding one year,
provided its execution is suspended on probation. Article 408
§ 3 stipulates that the judge shall comply
with the public prosecutor’s application if he has no reservations about issuing
the penal order. He shall set down a date for the main
hearing if he has reservations about deciding the case on the basis of a
written procedure, if he wishes to deviate from the public prosecutor’s legal
assessment in the application to issue the penal order, or if he wishes to
impose a legal consequence other than the one applied for by the public
prosecutor and the latter disagrees. In accordance with Article 409 of the
Code of Criminal Procedure the penal order shall
contain information as regards, inter alia, personal
data of the defendant and of any other persons involved, the offence the
defendant is charged with, the time and place of its commission,
the evidence on which the statement of facts and legal
assessment are based as well as the legal consequences imposed. It should
further advise on the possibility of filing an objection against the penal
order and that the latter shall become effective and executable if no such
objection is lodged within the time-limit of two weeks
following its service in accordance with Article 410 of the Code of Criminal
Procedure. Where no objection is lodged the penal order shall
be equivalent to a final judgment.
Pursuant to Article 201 of the Code of Criminal
Procedure the presiding judge shall communicate the bill of indictment to the
persons entitled to join the prosecution as joint plaintiffs (Nebenklagebefugte)
if they so request. Article 395 provides that a person
whose children, parents, siblings, spouse or civil partner
were killed through an unlawful act may join the public
prosecutor as joint plaintiffs to the prosecution (Nebenkläger).
Pursuant to Article 396 § 1 a declaration to join in penal order proceedings
shall only take effect when the judge decides to schedule a date for the main
hearing. Article 400 provides that joint plaintiffs to the
prosecution may not contest a judgment with the objective of another legal
consequence of the offence being imposed.
2. Relevant German and international law in connection
with the extradition proceedings instituted against U.
The Council Framework Decision of 13 June 2002
on the European arrest warrant and the surrender procedures between Member
States (2002584/JHA) provides in its Article 1 that Member States shall execute
any European arrest warrant on the basis of the principle of mutual recognition
and in accordance with the provisions of the Framework Decision. Article 4
specifies that the judicial authority of a Member State may refuse to execute a
European arrest warrant against a person where the latter is being prosecuted
in the executing Member State for the same act as that on which the European
arrest warrant is based. Pursuant to Article 3 the executing judicial
authorities of a Member State shall refuse to execute a European arrest warrant
if it has come to their knowledge that the requested person has been finally
judged by a Member State in respect of the same acts provided that, where there
has been sentence, the sentence has been served or is currently being served or
may no longer be executed under the law of the sentencing Member State.
Pursuant to section 1 of the German Act on
International Cooperation in Criminal Matters (Gesetz
über die internationale Rechtshilfe in Strafsachen (IRG)) its provisions
shall govern the relations between Germany and foreign States
regarding legal assistance in criminal matters. It further specifies that
provisions of international treaties shall take precedence over the provisions
of the Act to the extent that they have become directly applicable in the
domestic legal order. Pursuant to section 80 (1) of the Act the extradition of
a German citizen to a Member State of the European Union for the purpose of
prosecution shall not be admissible unless measures are in
place to ensure that the requesting Member State after a final conviction to a
sentence of imprisonment or other sanction will offer to return the person
sought, if he so wishes, to Germany for the purpose of enforcement and unless the offence has a substantial link to the requesting
Member State. The competent Higher Regional Court in Germany, acting upon
application of the relevant public prosecutor, decides on the admissibility of
an extradition request (see section 29 of the Act). In accordance with section
83 b (1) of the Act, extradition may be refused if criminal proceedings are pending against the person sought
in Germany for the same offence as the one on which the extradition request is
based. Furthermore, section 9 stipulates that extradition shall not be granted in the event the offence at issue is also subject
to German jurisdiction and a domestic court or other domestic authority has
rendered a final decision against the prosecuted person in this respect.
3. Relevant domestic law and practice in the United Kingdom
(a) English law relating to gross negligence
manslaughter
Involuntary manslaughter is a crime under common
law. The four stage test in cases of gross negligence was set out in R. v.
Adomako (1994) 3 All ER 79 by the House of Lords. It involves
(a) the existence of a duty of care to the deceased; (b) breach of that duty of
care which (c) causes (or significantly contributes) to the death of the
victim; and (d) the breach should be characterised as gross negligence
justifying a conviction.
(b) Proceedings for injury and death caused by
negligence
Claims arising from a
death caused by negligence may be brought under the Fatal Accidents Act 1976
(“the 1976 Act”) or the Law Reform (Miscellaneous Provisions) Act 1934 (“the
1934 Act”). The 1934 Act 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 death together with funeral expenses. The
1976 Act enables those who were financially dependent on the deceased to
recover damages for the loss of support.
(c) Human Rights Act 1998 (“HRA”)
Section 3 of the HRA
provides that so far as it is possible primary and secondary legislation must
be read and given effect in a Convention compatible manner. Section 6 of the
HRA makes it unlawful for a public authority to act incompatibly with
Convention rights, unless it is not possible to act differently by virtue of
primary legislation. A successful claim under Article 6 renders the relevant
public authority liable under section 7 of the HRA and a judge has the power to
award damages under section 8 of the HRA.
(d) Coroners and Inquests
Section 8(1) of the
Coroners Act 1988 (the “1988 Act”) requires a Coroner to hold an Inquest in
circumstances where there are grounds to suspect that a person (a) has died a
violent or an unnatural death or (b) has died a sudden death of which the cause
is unknown. Rule 36 of the Coroners Rules 1984 requires that proceedings be
directed solely to ascertaining: (a) who the deceased was; (b) how when and where
he came by his death; and (c) the particulars required by the Registration Act
to be registered concerning the death. Rule 36(2) specifically provides that
neither the Coroner nor the jury shall express any opinions on any other
matters. Rule 42 provides that no verdict shall appear to determine any
question of criminal or civil liability on the part of a named person. On 11 March 2004 the House of Lords decided (R. (Middleton) ν. West Somerset Coroner [2004] 2 AC 182; and R.
(Sacker) v. West Yorkshire Coroner [2004]
1 W.L.R. 796) that the limited scope of Inquests to date was
incompatible with the procedural requirements of Article 2 of the Convention.
Using the interpretation mechanism of section 3 of the HRA, the House of Lords
extended the Inquest regime so that “how” (section 11(5)(b)(ii) of the 1988 Act
and Rule 36(l)(b) of the Coroners Rules 1984) was to be interpreted as meaning
“by what means and in what circumstances” the deceased came by his death. Lord
Bingham clarified that, however the jury’s extended factual conclusions were to
be conveyed, Rule 42 was not to be infringed so that there could be no finding
of criminal or civil liability. While acts or omissions could be recorded,
expressions suggestive of civil liability, in particular neglect, carelessness
and related expressions were to be avoided.
According to Rule
43 the Coroner who believes that action should be taken to prevent the
recurrence of fatalities similar to that in respect of which the Inquest is
being held may announce at the Inquest that he is reporting the matter in
writing to the person or authority who may have power to take such action and
he may report the matter accordingly.
COMPLAINTS
The applicants, relying on the Member State’s
general duty under Article 1 of the Convention to secure to everyone
within their jurisdiction the rights and freedoms defined in its Section I,
complained about a violation of Article 2 under its substantive aspect as far
as the United Kingdom is concerned and under its procedural limb as regards
both the United Kingdom and Germany. In each case they alternatively invoked a
breach of Articles 8, 13 and 14 of the Convention.
Relying on Article 2 the applicants complained
that the British authorities failed to implement appropriate measures to
safeguard life within the country’s jurisdiction. This right included a duty
for the State to put in place effective criminal law provisions to deter
offences against the person. They further alleged that both Germany and the United Kingdom had failed to secure accountability for the grossly negligent killing
of U. in respect of their father’s death, an offence that was so serious that
an adequate and sufficient criminal remedy was required. The British
authorities had not taken the necessary steps in securing that the German
authorities would refrain from prosecuting U. and, consequently, criminal
investigations followed by an adversarial criminal court procedure could not be
instituted against him in the United Kingdom. The German authorities for their
part had concealed their intention to prosecute U. in Germany from the British authorities and the applicants in order to enable his conviction in Germany, thus allowing for a milder sentence than U. would have expected in the United Kingdom and preventing his extradition. Given the gravity of the offence at issue,
the summary written penal order proceedings and the inadequate sentence imposed
by the Witten District Court were not sufficient to discharge the procedural
guarantees inherent in Article 2. Furthermore, the German authorities had
failed to inform the deceased’s next of kin of the domestic proceedings and had
thus deprived them of any possibility to be involved and participate in the
latter.
With reference to the deceased’s right to
physical and moral integrity guaranteed under Article 8 of the Convention, the
applicants invoked that at the time of the events at issue a competent and
regular supervisory control of out-of-hours locum services provided by the NHS
had not existed in the United Kingdom. Under these circumstances it was even
more evident that an effective criminal remedy for victims of severe
interferences with their right to physical and moral integrity as a consequence
of medical malpractice was required. In addition, the applicants contended that
the loss of their father had infringed their right to respect for family life
under Article 8.
Under Article 13 of the Convention the
applicants complained that both Member States had failed to provide for an
adequate and sufficient criminal remedy with respect to the aforementioned
violations. The criminal proceedings conducted in Germany had not involved a
proper investigation or scrutiny of the facts of the case or the related
evidence and in any event U.’s resulting conviction by the District Court had
become final and could no longer be challenged. Criminal proceedings in the United Kingdom were blocked due to the German authorities’ refusal to extradite U. The
Coroner’s Inquest as well as the civil claims for damages brought before the
English courts did not constitute an effective remedy for the violation of
Article 2 of the Convention in the instant case.
Lastly, the applicants alleged that they had
been discriminated against by both Member States by reason of their national
origin in breach of Article 14 of the Convention.
THE LAW
A. The applicants’ complaints in respect of Germany
The applicants complained under Article 2 of the
Convention, read in conjunction with the State’s general duty under its Article
1 to “secure to everyone within [its] jurisdiction the rights and freedoms
defined in [the] Convention”, that Germany did not provide for an adequate or
effective official investigation into their father’s death. They relied in this
respect on the procedural obligations inherent in Article 2 § 1 which provides
in its first sentence:
“1. Everyone’s right to life shall be protected by
law. ...”
The applicants further complained that U.’s
conviction by the Witten District Court could no longer be challenged since it
had become final. They relied on Article 13 in this respect, which reads as
follows:
“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.”
The Court finds that the
entirety of the applicants’ complaints relate in substance to an alleged
failure by the German authorities to discharge their procedural obligations
under Article 2 § 1 of the Convention and therefore fall to be
examined under that provision with no separate issue arising under its Article
13.
The applicants maintained that given the gravity
of the offence committed by U., the summary written penal order proceedings
conducted against him in Germany and the allegedly inadequate sentence imposed
by the Witten District Court were not sufficient to discharge the procedural
guarantees enshrined in Article 2. The criminal proceedings in Germany had not involved a proper investigation or scrutiny of the facts of the case or the
related evidence. Moreover, the German authorities had failed to inform the
deceased’s next of kin of the domestic proceedings and had thus deprived them
of any possibility to get involved and participate in the latter. The
applicants contended in this connection that the German authorities had
concealed their intention to prosecute and convict U. in Germany with a view to preventing his extradition to the United Kingdom where he would have expected
a heavier sentence for having caused their father’s death through negligence.
The Court finds that it cannot, on the basis of
the case file, determine the admissibility of the complaints. It is therefore
necessary to give notice of this part of the application to the German
Government in accordance with Rule 54 § 2 (b) of the Rules of Court.
B. The applicants’ complaints in respect of the United Kingdom
Relying on the substantive aspect of Article 2
read in conjunction with Article 1 of the Convention the applicants
complained that the British authorities failed to implement appropriate
measures to protect the life of their father. They further invoked a breach of
their deceased’s father right to physical and moral integrity since at the time
of the events at issue a competent and regular supervisory control of
out-of-hours locum services provided by the NHS had not existed in the United
Kingdom. Moreover, the loss of their father had infringed their right to
respect for family life. The applicants relied in this respect on Article 8 of
the Convention which provides as far as relevant:
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence. ...”
The Court finds that these complaints, in their
entirety, refer to a violation of the United Kingdom’s obligation to implement
appropriate measures with a view to safeguarding life within the country’s
jurisdiction and therefore fall to be examined under Article 2 § 1 of the Convention.
The applicants also complained that the
investigations into their father’s death had not been adequate or effective as
required by the procedural obligations imposed by Article 2 of the Convention.
The British authorities had not taken the necessary steps to ensure that the
applicant could be tried and convicted in criminal proceedings conducted in the
United Kingdom. Relying on Article 13 of the Convention, the applicants
argued that the Coroner’s Inquest as well as the civil claims for damages
brought before the English courts had not constituted an effective remedy for
the violation of Article 2 of the Convention in the instant case.
1. The complaint concerning the positive obligation to
protect life
The Court recalls at the outset that the
applicants have brought claims in negligence against U., TCN as well as
Cambridgeshire PCT with the High Court under section 6 of the Human Rights Act
1998 in connection with their father’s killing alleging a breach of the latter’s
rights under Articles 2 and 8 of the Convention. These claims have been settled
with respect to all three defendants by consent orders of December 2009,
January and August 2010 respectively on payment of GBP 25,000 by U.,
GBP 5,000 by TCN and GBP 10,000 by Cambridgeshire PCT, plus legal
costs in each case. According to the terms of the consent orders, upon payment
of the sums awarded, the defendants have been discharged from all further
liability to the claimants arising out of the subject matter of the claims.
The Court reiterates in
this connection that in respect of a complaint of a substantive violation of
Article 2 of the Convention, the possibility of obtaining compensation for the
death of a person will generally, and in normal circumstances, constitute an adequate
and sufficient remedy. Where a relative accepts a sum of compensation in
settlement of civil claims and renounces further use of local remedies
therefore, he or she will generally no longer be able to claim to be a victim
in respect of those matters (see Powell v. the United Kingdom
(dec.), no. 45305/99, ECHR 2000-V; Caraher v. the United Kingdom (dec.), no. 24520/94, ECHR 2000-I; Hay v. the United Kingdom (dec.), no. 41894/98, 17 October 2000; and Bailey v. the
United Kingdom (dec.), no. 39953/07, 5 September 2007).
In so far as the
applicants’ complaint appears to indicate that civil proceedings were per se an ineffective way of
challenging the deficiencies in the British health system which the applicant
maintained constituted a violation of Article 2 of the Convention, the Court
would note that civil proceedings are a standard method of challenging
negligent conduct and practices of official bodies (see Caraher, cited
above). Within the scope of the proceedings brought before the High Court, the
applicants did not only call into question the authorities’ responsibility for U.’s
actions in his capacity as a servant or agent for TCN and Cambridgeshire PCT
but also argued that the NHS authorities themselves had failed to observe the
precautions required by the relevant provisions of domestic law. There is nothing to suggest that the applicants in the present
case could not have pursued their claims for negligence and obtained the
domestic courts’ findings as to the alleged inadequacies and failings of the
British authorities and their causal link with their father’s death. They
chose, however, to settle those proceedings without obtaining such a
determination. It is not for the Court, in those circumstances, to undertake
the role of a first instance tribunal of fact and law (see Hay, cited
above).
The Court further notes
that there is no indication that the Government have attempted to avoid
compliance with their obligations under the Convention by means of the mere
payment of money. The circumstances of Mr Gray’s death and the underlying
deficiencies in the British health system have been the subject of a report
addressed by the Coroner to the Secretary of Health which led to investigations
at parliamentary level as well as to an independent review by the Care Quality
Commission. The findings of these inquiries as regards the facts of the case as
well as the related shortcomings of the British health system have been
disclosed in reports that were made available to the public and subject to
public and political debate. The Court finally notes that there is no
suggestion on the part of the applicants that the amount of compensation
awarded by the English courts was inadequate.
Accordingly, the Court
finds that, in bringing civil proceedings for damages in respect of the death
of their father, the applicants have used the domestic remedies available and
that, in settling those claims for a sum of compensation and in renouncing
further use of these remedies, they may no longer claim to be a victim of a
violation of the substantive guarantees of Articles 2 of the Convention within
the meaning of Article 34 of the Convention.
It follows that this part
of the application must be rejected as being manifestly ill-founded pursuant to
Article 35 §§ 3 (a) and 4 of the Convention.
2. The complaint regarding the procedural obligation
to carry out effective investigations
As the Court has held on several occasions, the procedural obligation of
Article 2 requires the States to set up an effective independent judicial
system so that the cause of death of patients in the care of the medical
profession, whether in the public or the private sector, can be determined and
those responsible made accountable (see, among other authorities, Šilih
v. Slovenia [GC], no. 71463/01, § 192, 9
April 2009; Calvelli and Ciglio v. Italy [GC], no. 32967/96,
§ 49, ECHR 2002-I, and Powell, cited
above).
Even if the Convention
does not as such guarantee a right to have criminal proceedings instituted
against third parties, the Court has said many times that the effective
judicial system required by Article 2 may, and under certain circumstances
must, include recourse to the criminal law. However, if the infringement of the
right to life or to personal integrity is not caused intentionally, the
procedural 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 (Mastromatteo v. Italy [GC], no. 37703/97, § 90,
ECHR 2002-VIII). 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 responsibility
of the doctors concerned to be established and any appropriate civil redress,
such as an order for damages and/or for the publication of the decision, to be
obtained. Disciplinary measures may also be envisaged (Calvelli and Ciglio, cited
above, § 51; and Vo v. France [GC], no. 53924/00, § 90,
ECHR 2004-VIII).
The Court observes that in the case at hand the
applicants did not in any way suggest that their father’s death was
intentional. The Court further notes that the present application does not
concern a case where the circumstances surrounding the death were suspicious or
unclear. The cause of Mr Gray’s death and U’s involvement in the underlying
events were conclusively established in due course after the applicants’ father
died in February 2008. Police inquiries were instituted in the United Kingdom promptly after the incident. At the end of February 2008 U. was heard by the
General Medical Council in London. A post-mortem was carried out on 25 June
2008. U. also acknowledged responsibility for the medical malpractice in his
apology letter to the deceased’s partner and the first applicant in July the
same year and made a full confession in the course of the criminal proceedings
subsequently instituted against him in Germany.
The Coroner’s Inquest provided a further
opportunity to investigate the factual circumstances leading to the applicant’s
death. The Court observes in this context that the applicants have not pointed
to any failure by the Coroner to admit relevant, available evidence nor have
they challenged any other shortcomings in the Inquest proceedings or the
evidentiary conclusions reached by the Inquest. The latter not only returned
the verdict that Mr Gray had been unlawfully killed as a consequence of the
inadequate treatment administered by U. but also pointed explicitly to the
deficiencies in the recruitment, training and supervision of foreign locum
doctors in the United Kingdom. These deficiencies were at the origin of the
Coroner’s report to the Secretary of Health and resulted in investigations by
the House of Commons Health Committee as well as in an independent inquiry by
the Care Quality Commission which came to similar conclusions as the Inquest
and identified related shortcomings in the British health system. On the occasion
of the proceedings conducted by the General Medical Council regarding U.’s
fitness to practice the circumstances of Mr Gray’s death were further
investigated and additional evidence from expert witnesses and the deceased’s
next of kin was considered.
In addition, the
applicants brought civil claims for damages for unlawful killing arising
out of negligence with the High Court against U., TCN as well as Cambridgeshire
PCT in the United Kingdom. The Court considers that in the circumstances of the
present case such action for damages could be regarded as a remedy that was
available to the applicants with a view to further substantiating their
allegations regarding the extent of U.’s responsibility for their father’s
death. By settling the claims against U. the applicants deprived themselves of
such additional possibility for shedding light on the circumstances of their
father’s death. The Court recalls that it has previously held that where a
relative of a deceased person accepts compensation in settlement of a civil
claim based on medical negligence he or she is in principle not only no longer
able to claim to be a victim in respect of the circumstances surrounding the
treatment administered to the deceased person (see §§ 83 et seq. above) but
also with regard to the investigations carried out (see Powell, cited
above).
Even assuming that the applicants can still
claim to be a victim of a violation of the procedural guarantees of Article 2
and notwithstanding its finding that the institution of civil proceedings was
sufficient to discharge the United Kingdom’s procedural obligations under
Article 2 in the instant case, the Court notes that there is nothing to
establish that the criminal investigations initiated on the initiative of the
British authorities in relation to Mr Gray’s death fell short of the
requirements of Article 2 § 1 under its procedural aspect.
There is no suggestion on the part of the
applicants that these proceedings were not conducted in line with the relevant
provisions of domestic law nor do they contest that the criminal investigations
in the United Kingdom were actually blocked once U.’s extradition from Germany
had been halted and that it was thus not imputable to the British authorities
that the proceedings could not be pursued. The Court further observes that the
applicants’ allegations that the British authorities did not take sufficient
positive steps to prevent U.’s conviction in Germany so as to enable his
extradition to the United Kingdom have not been further substantiated. It notes
in this context that the German authorities were obliged to institute criminal
proceedings against U. by operation of domestic law once they had learned of
his involvement in the events surrounding Mr Gray’s death and consequently had
a basis for their decision not to extradite U. to the United Kingdom in
accordance with the relevant domestic and international law. There is nothing
to establish that, as indicated by the applicants, the German authorities would
have agreed to U.’s extradition if the EAW had been issued earlier by the
British authorities.
The Court further observes that, in reality, the
applicants complained about the fact that U. was convicted in Germany and not in the United Kingdom where he may have faced a heavier penalty. It would point out
in this respect that the procedural guarantees enshrined in Article 2 do not
entail a right or an obligation that a particular sentence be imposed on a
prosecuted third party under the domestic law of a specific State. It reiterates in this context that the procedural obligation
under Article 2 is not an obligation of result but of means only (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002-II).
It follows that this part
of the application must also be dismissed as being manifestly ill-founded in
accordance with Article 35 §§ 3 (a) and 4 of the Convention.
Having regard to the above
considerations the Court further finds that no separate issue arises with
respect to the applicants’ related complaint under Article 13 of the
Convention.
C. The remainder of the applicants’ complaints
The applicants further submitted that they had
been discriminated against by both Germany and the United Kingdom by reason of
their national origin in breach of Article 14 of the Convention which
reads as follows:
“The enjoyment of the rights and freedoms set forth in [the]
Convention shall be secured without discrimination on any ground such as sex,
race, colour, language, religion, political or other opinion, national or
social origin, association with a national minority, property, birth or other
status.”
The Court notes that even assuming exhaustion of
domestic remedies for the purposes of Article 35 § 1 of the Convention in this
respect, the applicants have not substantiated their discrimination complaint
in any way or provided factual evidence in its support.
Accordingly, this part of the application must
also be rejected as manifestly ill-founded in accordance with Article 35 §§ 3
(a) and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the
applicants’ complaints concerning the conduct of an effective criminal
investigation into their father’s death in Germany;
Declares the remainder of the application inadmissible.
Claudia
Westerdiek Mark
Villiger
Registrar President
