R (Khan) v Secretary of State for Health
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SILBER |
| Judgment Date | 17 June 2003 |
| Neutral Citation | [2003] EWHC 1414 (Admin) |
| Docket Number | Case No: CO/5378/2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 June 2003 |
[2003] EWHC 1414 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Silber
Case No: CO/5378/2002
Mr. Philip Havers QC (instructed by Freethcartwright of Nottingham) for the Claimant
Mr. Nigel Giffin QC (instructed by The Solicitor for The Department of Health) for the Defendant
Mr. Justice Silber:
Introduction
1. On 8 October 1999, Naazish Khan was then only three years old when she died suddenly and tragically while she was undergoing treatment in St. James Hospital, Leeds (“the hospital”). Various inquiries have taken place and an inquest into Naazish's death is due to start on 24 November 2003. Naazish's father, Mohammed Farooq Khan (“the claimant”) contends that the inquiries that have already taken place into Naazish's death do not comply with the state's obligations to her family imposed by Article 2 of the European Convention on Human Rights (“the Convention”) to investigate properly Naazish's death.
2. The claimant's case is that this failure can only be remedied by the proper and effective participation of him and his family in the inquest into Naazish's death or in any inquiry into the causes of her death set up by the Government. Mr. Philip Havers QC for the claimant contends that such proper and effective participation by the claimant requires and entails the provision by the state of financial assistance so that he can be legally represented because not only is he not well enough medically to represent his own interests at such an inquest or inquiry but also because he lacks the required medical knowledge and the financial resources to pay for such legal representation himself. The claimant's financial circumstances prevent him from receiving public funding. So he claims a declaration that the Secretary of State for Health (“the Secretary of State”) should pay for legal representation for Naazish's family at the inquest into her death or that he holds an inquiry into Naazish's death and that he pays for the claimant's legal representation at such inquiry. Initially, the claimant also claimed relief against Leeds Teaching Hospital NHS Trust (“the Trust”), which was the body responsible for the hospital but this claim has been withdrawn.
3. Mr. Nigel Giffin QC for the Secretary of State contends that Naazish died before the Human Rights Act 1998 (“the 1998 Act”) came into effect with the consequence that the claimant does not have any Article 2 rights arising out of Nazism's death. The Secretary of State also submits that even if an obligation was owed to the claimant under Article 2 of the Convention to investigate Naazish's death, then it has already been complied with or, in any event, it will be complied with at the forthcoming inquest, even if the claimant is not represented.
4. Lightman J ordered that the claimant's application for permission to pursue this claim should be listed immediately before the hearing of the substantive hearing. After having read the written skeleton arguments of counsel, I informed counsel that my provisional conclusion was that the claimant should have permission to pursue his claim against the Secretary of State. As counsel for the Secretary of State did not seek to persuade me not to follow this course, I duly gave the claimant permission and so this is the judgment on the substantive hearing, which I will start by setting out in more detail the facts giving rise to this claim.
The background to the claim
5. Naazish Farooq was born on 12 July 1996 and she was the fifth of the six children of her parents, the claimant and his wife Safia Sultan. During the first three years of her life, she suffered no serious illness but in the summer of 1999 she began to complain of earache and discharge from her ear. Naazish's condition failed to respond to treatment and she was eventually admitted to St. Luke's Hospital, Bradford on 20 September 1999 where it was discovered that her lymph nodes and her spleen had become enlarged. By 24 September 1999, her condition had deteriorated and she was suffering from some respiratory difficulties. So Naazish was transferred to the hospital where a biopsy was carried out and where her condition was ultimately diagnosed as B Cell Lymphoma. As a result, she began a course of chemotherapy on 5 October 1999.
6. In anticipation of the need for chemotherapy, haemodialysis had commenced on 25 September 1999 in order to guard against renal failure. This treatment included the administration of potassium in such quantities as was required to maintain the necessary and appropriate potassium level. Potassium (potassium chloride) was infused through the dialysis machine by means of a mixture of fluids run in from a bag of fluids. On each occasion on which the infusion bag was changed, a blood analysis had to be carried out in order to obtain, inter alia, an accurate reading of the potassium level in the blood. If the level was too low, more potassium was added to the next bag while if it was too high, less was added. The prescription for potassium was attached to the patient's bed and the amount could be read off from the prescription, which states the specific quantity required to be given for each level on the reading.
7. Because potassium is a heavy solution, the bag containing the potassium and the diluent had to be shaken vigorously in order to mix it properly, as otherwise the potassium would lie at the bottom of the bag where the line entered the bag and the patient would receive a bolus dose of potassium. This is important because excessive infusion of potassium can and does cause heart problems, heart attacks and ultimately death.
8. Shortly after Naazish's chemotherapy treatment began and in the early hours of 8 October 1999, something went catastrophically wrong with the administration of potassium to her. It seems that at about 02.30 hours a fresh bag was put up containing what was apparently a grossly excessive amount of potassium. The police report suggests that this happened, inter alia, because no blood gas test was carried out before the bag was made up, the nurse failed properly to mix the bag when she added potassium to it and then her actions were not checked by another nurse, as they should have been. Shortly afterwards, Naazish suffered a heart attack. Attempts were made to revive her during the course of which a blood gas reading was taken. This disclosed an alarmingly high potassium reading of 18.9, which compares with first, a normal therapeutic level of 3 and second, a level of 9 to 10 which would be high enough to cause death. Twenty minutes later, a second blood gas test disclosed a potassium level of 13.4. Although this represented a significant reduction, it was still far too high a level and Naazish tragically died shortly afterwards.
9. Notwithstanding these findings of grossly abnormal levels of potassium, the cause of death was certified by the hospital staff as being “cardio-respiratory attack and B Cell Lymphoma”. According to the claimant, the hospital also said nothing to the Coroner's officer about these levels of potassium when the officer authorised the release of Naazish's body, which, according to Muslim law, had to be and was buried within 24 hours of her death.
10. Nonetheless, shortly afterwards, the police began to investigate Naazish's death and in the course of their investigations, they applied to the Coroner for her body to be exhumed. This application was granted and a post-mortem was carried out. The pathologist, Dr. Milroy concluded that
“Taking the findings of a high potassium at collapse, combined with the post-mortem findings and the experiments performed on 25 November 1999, described by Professor Forrest, in my opinion death is consistent with potassium poisoning”.
11. The police conducted extensive inquiries and subsequently they produced a lengthy report, which they sent to the coroner, who duly supplied it to the claimant, who had not been involved in the police investigations. The police had requested the Trust not to contact the Khan family while the police investigation was underway. The hospital conducted various inquiries, which led to a series of reports, which were supplied to the claimant, but regrettably only after the commencement of these proceedings. In due course, I will analyse those reports to determine the extent to which they constitute or assist in ensuring compliance with the state's Article 2 obligations.
The legal background and the issues
12. At the heart of the claimant's case is the contention that Article 2 of the Convention gives him the right to obtain an investigation by the state into Naazish's death and also to obtain payment of his legal costs from the Secretary of State. So it is appropriate at this stage to make some introductory comments about Article 2, which insofar as is material to this application, provides that:—
“1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court”.
13. As Lord Woolf CJ pointed out when giving the judgment of the Court of Appeal in R (Amin and Middleton) v. Secretary of State for the Home Department [2003] QB 581 (“Amin”):-
“Plainly there is no duty on the face of the Convention to investigate a death. It is clear that such a duty has been constructed or developed by the court at Strasbourg out of a perception that, without it, the substantive rights conferred by Article 2 would or might in some cases be...
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