R (Khan) v Secretary of State for Health
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke |
| Judgment Date | 10 October 2003 |
| Neutral Citation | [2003] EWCA Civ 1129 |
| Docket Number | Case No: C1/2003/1459 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 October 2003 |
[2003] EWCA Civ 1129
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
Silber J
Lord Justice Brooke Vice-president of the Civil Division of the Court of Appeal
Lord Justice Waller and
Lord Justice Clarke
Case No: C1/2003/1459
Philip Havers QC (instructed by Freeth Cartwright) for the Appellant
Nigel Giffin QC (instructed by the Solicitor, Department of Health) for the Respondent
INDEX
Part No Para No
Introductory; The facts 1
The police investigations 10
Mr Balen's activities 15
The Trusts' investigations 26
The judicial review proceedings: the respondents' evidence 29
The importance of involving the deceased's family 40
The judgment in the court below and the issues on the appeal 45
Question 1: What is the content of the state's Article 2 obligations
in the present case? 47
Question 2: Has the state's Article 2 obligations in this case already
been performed? 68
Question 3: If the state has not yet fulfilled its Article 2 obligations,
can the holding of the inquest satisfy those obligations
if Mr Khan cannot play an effective part in it himself? 73
Question 4: If the answer to question 3 is "no", does the 1998 Act
apply, so that Mr Khan may obtain relief in a national court? 78
Question 5: Whatever the answer to the first four questions, does
Lord Justice Brookethe Secretary of State have power to make the necessary
funding available? 87
This is the judgment of the court.
Introductory: The facts
This is a sad and disturbing case.
The applicant Mohammed Farooq Khan came to England from Pakistan when he was a child. He graduated at Bradford University, and in September 1999 he had a good job as new products controller at a firm in Leeds which specialised in making video transmission products. He was intelligent, articulate in both Urdu and English, and was heading for a senior management post in the firm.
He and his wife Safia had six children, and the only real cloud in their married life had been the death of one of their daughters at St James's Hospital, Leeds in 1994. They were very concerned about the quality of the treatment their daughter had received there before she died.
In the summer of 1999 their fifth daughter Naazish Farooq Khan, aged three, began to complain of earache and a discharge from her ear. Her condition failed to respond to treatment and she was eventually admitted to St. Luke's Hospital, Bradford on 20th September 1999. It was discovered that her lymph nodes and her spleen had become enlarged. By 24th September 1999, her condition had deteriorated and she was suffering from some respiratory difficulties. She was transferred to St James's Hospital, Leeds. A biopsy was carried out, and she was transferred to the intensive care unit. A provisional diagnosis of B cell lymphoma was in due course confirmed. She began a course of chemotherapy on 5th October 1999.
In anticipation of the need for chemotherapy, and in order to guard against any damage to her kidneys in the course of that treatment, haemodialysis had started on 25th September 1999. This treatment included the administration of potassium in such quantities as were required to maintain the appropriate potassium level. Potassium chloride was infused through the dialysis machine by means of a mixture of fluids run in from a bag of fluids. Every time the infusion bag was changed, a blood analysis should have been carried out in order to obtain, among other things, an accurate reading of the potassium level. If the level was too low, more potassium was added to the next bag. If it was too high, less potassium was added. The prescription for potassium was attached to her bed, and it stated the specific quantity of potassium that had to be given for each level on the blood analysis reading.
Because potassium is a heavy solution, the bag containing the potassium and the diluent had to be shaken vigorously in order to mix it properly. Otherwise the potassium would lie at the bottom of the bag where the line entered the bag, and the patient would receive a bolus dose of potassium. This was to be avoided at all costs because an excessive infusion of potassium can cause heart problems, heart attacks, and eventually death.
Shortly after Naazish's chemotherapy treatment began, in the early hours of 8th October 1999, something went catastrophically wrong with the administration of potassium. A blood gas analysis carried out at 00.17 hours that morning appears to have showed an appropriate level of potassium in the blood. At about 02.30 hours a fresh bag was put up containing what was apparently a grossly excessive amount of potassium. A police report suggests that one of the reasons why this happened was because no blood gas test was carried out before the bag was made up, the nurse failed to mix the bag properly when she added potassium to it, and her actions were then not checked by another nurse, as they should have been. An independent medical expert was later to castigate this series of omissions as having been grossly negligent (see para 13 below).
Naazish suffered a heart attack about an hour and a half later. Attempts were then made to revive her, and during the course of these efforts a blood gas reading was taken. This disclosed an alarmingly high potassium reading of 18.9. This can be compared with a normal therapeutic level of 3.5 to 5. A level of 9 to 10 would be high enough to cause death. Twenty minutes later, a second blood gas test disclosed a potassium level of 13.4. Although this represented a significant reduction, it was still far too high a level, and Naazish died soon after that second test was taken. A doctor at the hospital discussed the situation with her parents at some length, but it is said that he regarded the very high potassium levels as an artefact and made no reference to them at all.
Nor did anybody at the hospital say anything to the coroner's officer about these potassium levels. The cause of death was certified by the hospital staff as "cardio-respiratory attack and B Cell Lymphoma", and Naazish's body was released for burial. She was buried within 24 hours of her death in accordance with Muslim law. Although he has read the evidence collected in the investigations that have so far taken place, Mr Khan's solicitor is of the view that the circumstances surrounding the defective notification of death in this case "cry out" for exhaustive inquiry, if for no other reason than to overturn the perception that there was a medically orchestrated cover up of the cause of Naazish's death, which led to all the distressing consequences we now describe.
The police investigations
On the following Monday the police started to investigate Naazish's death, and at an early stage of their investigations they applied to the coroner for her body to be exhumed. The very idea that his daughter's body should be dug up caused the greatest possible distress to her father. He believed passionately that nobody should tamper with his daughter's body after it had been buried. He made desperate, but unsuccessful, attempts to contact the coroner between 8 pm on 2nd November 1999, when he was told of the proposed exhumation, and 4 am the following morning when the exhumation was carried out. He was later to tell a psychiatrist that he went through absolute hell from that day until his daughter's body was released for reburial a year later. He became deeply depressed and was off work for a year. He then returned to a much more junior post with his old firm. This was all he was able to manage.
After the exhumation, a post-mortem was carried out. The pathologist, Dr. Milroy, concluded that:
"Taking the findings of a high potassium at collapse, combined with the post-mortem findings and the experiments performed on 25th November 1999, described by Professor Forrest, in my opinion death is consistent with potassium poisoning".
The police inquiries were extensive. Their aim was to consider if any criminal charge could be brought in respect of any of the acts and omissions that led to Naazish's death. A case might have been established to the effect that one or more of the members of the hospital staff responsible for Naazish's care had been guilty of manslaughter by gross negligence. The police asked the hospital trust ("the Trust") not to contact Naazish's family or to conduct any investigations of their own while the police investigation was under way. They wished any communication with the family to be channelled through them, and not through the Trust. Mr Khan was not in the event involved in the police investigations in any way.
In due course they prepared a detailed report on the results of their investigation. This report extended to 84 pages, and its substantial exhibits included witness statements, copies of medical notes and medical reports. One of those reports had been prepared for them by Dr. Mark Bradbury, a consultant paediatrician and paediatric nephrologist at the Manchester Children's Hospital. Dr Bradbury was of the opinion that the most likely cause of Naazish's death was an excessive infusion of potassium from the dialysis solution. He considered that both the sister on duty and the Trust as a whole had been grossly negligent.
It appears that there were a number of possible reasons for the cardiac arrest which preceded Naazish's death. These included tumourlysis (caused by her cancerous tumour), respiratory failure,...
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