Rosaleen Kennedy+jean Black V. The Lord Advocate
| Jurisdiction | Scotland |
| Judge | Lord Mackay of Drumadoon |
| Judgment Date | 2008 |
| Neutral Citation | [2008] CSOH 21 |
| Court | Court of Session |
| Published date | 05 February 2008 |
| Year | 2008 |
| Date | 05 February 2008 |
| Docket Number | 16/06 |
OPINION OF LORD MACKAY OF DRUMADOON
PETITIONS
BY
ROSALEEN KENNEDY and Jean Black
for
Judicial Review of Decisions of
THE LORD ADVOCATE AND
SCOTTISH MINISTERS
SUMMARY
5th February 2008
These petitions were raised by the relatives of two people, who died after they had become infected with the Hepatitis C virus. That infection occurred whilst they were under the care of the National Health Service in Scotland. The Lord Advocate refused to hold Fatal Accident Inquiries into the deaths of the deceased. The petitioners seek the judicial review of those decisions. The petitioners also seek review of the refusal of the Scottish Ministers to set up public inquiries into those deaths.
Lord Mackay of Drumadoon has held that both the Lord Advocate and the Scottish Ministers have acted in a manner incompatible with the Convention rights of the deceased. Lord Mackay has quashed the decisions of the Lord Advocate refusing to hold Fatal Accident Inquiries into the deaths of the deceased. He has also held that both the Lord Advocate and the Scottish Ministers have statutory powers under which they could set up public inquiries into the deaths of the deceased and that such enquiries would satisfy the Convention rights of the deceased.
Before making any further orders, Lord Mackay has arranged a further hearing in respect of each petition to allow the Lord Advocate and the Scottish Ministers a period of time within which to consider what action they intend to take in the light of his rulings.
The two petitions for judicial review were raised by Mrs. Rosaleen Kennedy, the daughter of Mrs. Eileen O'Hara, who died on 7 May 2003, and Mrs Jean Black, the widow of the Reverend David Black, who died on 31 October 2003. Some years prior to their deaths both Mrs. O'Hara and Mr. Black became infected with the Hepatitis C virus. In each instance, that occurred as a consequence of the medical treatment they received whilst patients of the National Health Service in Scotland.
The petitions were raised against the Lord Advocate and the Scottish Ministers. It is accepted on behalf of both the Lord Advocate and the Scottish Ministers that Mrs. O'Hara's death was contributed to by her having become infected with the Hepatitis C virus as a consequence of blood transfusions. It is also accepted that Mr. Black's death was contributed to by his having become infected with the Hepatitis C virus as a consequence of blood transfusions and treatment with blood products. Mrs. O'Hara and Mr. Black became infected because some of the blood donations used in blood transfusions and for the preparation of blood products had been contaminated with the Hepatitis C virus (paras. [4] - [7]).
Mrs. O'Hara and Mr. Black were amongst more than 4000 individuals who became infected with the Hepatitis C virus during the 1980s, as a consequence of their being transfused with blood or blood products contaminated with the Hepatitis C virus. The circumstances in which those individuals became infected with the Hepatitis C virus have given rise to public concern. The Scottish National Blood Transfusion Service and the National Health Service in Scotland did not introduce any form of heat treatment of blood products until April 1987. Such heat treatment could have eliminated the possibility of patients being treated with blood products being infected with the Hepatitis C virus. The Scottish National Blood Transfusion Service did not introduce any screening test for blood donations to determine whether they were contaminated with the Hepatitis C virus until 1 October 1991 (paras [8] - [19]).
The petitioners have never made any criticisms of any of the doctors and other medical staff who were directly involved in the care of their relatives. Their concerns relate to the circumstances in which blood donations from donors infected with the Hepatitis C virus came to be used in the blood transfusions, which Mrs. O'Hara and Mr. Black both received, and in the blood products with which Mr. Black was treated.
Over several years, the petitioners have called for public inquiries to be held into the deaths of their relatives. On 18 April 2006, the Health Committee of the Scottish Parliament called upon the Scottish Ministers to set up an inquiry into matters pertaining to Hepatitis C in Scotland.
On 15 June 2006, the Lord Advocate decided not to seek Fatal Accident Inquiries into the deaths of Mrs. O'Hara and Mr. Black. On 16 June 2006 the Health Minister of the Scottish Executive issued a press release giving notice of the decision of the Scottish Ministers refusing to hold a full judicial inquiry into the infection of patients with Hepatitis C in Scotland through NHS treatment (paras [18] - [29]).
Lord Mackay of Drumadoon has held that since the deaths of Mrs. O'Hara and Mr. Black, both the Lord Advocate and the Scottish Ministers have acted in a manner incompatible with the Convention rights of the deceased. Article 2 of the European Convention of Human Rights provides that " everyone's right to life shall be protected by law...".
When a person dies following upon treatment in hospital, obligations arise under Article 2 which require the United Kingdom to have in place a system that is capable of providing a practical and effective investigation of the facts relating to the death of that person and the determination of any civil liability relating to their death. That system can include the possibility of criminal, civil or disciplinary proceedings and the initiation of an investigation by the State, which in respect of a death in Scotland could include the Lord Advocate seeking a Fatal Accident Inquiry before the Sheriff or the setting up of a public inquiry by the Scottish Ministers.
In the present cases, factual issues arise as to when each of Mrs. O'Hara and Mr. Black became infected with the Hepatitis C virus and whether the Scottish National Blood Transfusion Service and the National Health Service in Scotland could have introduced the heat treatment of blood products and the screening of blood donations by earlier dates than they did (paras. [91] - [97]).
On the basis of the submissions he received, Lord Mackay has reached the conclusion that there has never been any possibility of criminal proceedings founded upon the circumstances leading up to the death of either Mrs. O'Hara or Mr. Black. No disciplinary proceedings have ever been taken against any individual involved in the collection of blood donations or the supply of blood and blood products for the transfusion of Mrs. O'Hara and Mr. Black (paras. [102] - [105])
Lord Mackay has also reached the conclusion that whilst it would have been open to the each of the petitioners to have raised civil proceedings seeking damages, in the particular circumstances leading up to the deaths of Mrs. O'Hara and Mr. Black, there has never been any realistic prospects that such civil proceedings would have led to practical and effective investigations of the facts relating to those deaths (paras. [106] - [125]).
In the particular circumstances of these cases, Lord Mackay has reached the conclusion that the only means by which a practical and effective investigation into the death of either Mrs. O'Hara or Mr. Black could be achieved would be if the State were to initiate a public inquiry. That could be done by the Lord Advocate seeking the holding of a Fatal Accident Inquiry before a Sheriff or by the Scottish Ministers setting up a public inquiry under the provisions of the Inquiries Act 2005.
Given the continuing refusal of the Lord Advocate and the Scottish Ministers to set up such public inquiries, Lord Mackay has reached the conclusion that, in the particular circumstances relating to the deaths of Mrs. O'Hara and Mr. Black, the system in place to meet the State's obligations under Article 2 has not proved capable of providing a practical and effective investigation into either death. As a consequence both the Lord Advocate and the Scottish Ministers have acted in breach of the Convention rights of the deceased (paras. [126] - [128])
Lord Mackay quashed the decisions of the Lord Advocate not to hold Fatal Accident Inquiries into the deaths of Mrs. O'Hara and Mr. Black. He did so because the Lord Advocate had acted in breach of the Convention rights of the deceased and also on account of errors of law on the part of the Lord Advocate that were apparent in the letter of 15 June 2006 giving notice of the Lord Advocate's decisions (paras [127] - [134]) .
Lord Mackay refrained from setting aside the decision of the Scottish Ministers of16 June 2006, on account of the fact that the decision of the Scottish Ministers had been taken as being their response to a call for a public inquiry made by the Health Committee of the Scottish Parliament, rather than their reply to calls from the petitioners for inquiries into the deaths of Mrs. O'Hara and Mr. Black. In reaching that decision Lord Mackay also had regard to the fact that on 16 June 2007 the Scottish Government re-affirmed its commitment to hold a "general public inquiry" to "find out why people were infected with Hepatitis C through NHS Treatment". The remit, scope, and form of that inquiry have yet to be determined (paras. [16] and [146])
Lord Mackay took the view that it would be premature to grant any further orders against the Lord Advocate and the Scottish Ministers. He continued the petitions to a further hearing, to allow the Lord Advocate and the Scottish Ministers the opportunity to consider what action they intend to take in light of the terms of his Opinion.
A date for this hearing will be fixed in due course.
NOTEThis summary is provided to assist in understanding the Court's decision. It does not form part of the reasons for that decision. The full opinion of the Court is the only authoritative document.
| OUTER HOUSE, COURT OF SESSION [2008] CSOH 21 | |
| OPINION OF LORD MACKAY OF DRUMADOON in the petitions of ROSALEEN KENNEDY |
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