Alice Emmas For Judicial Review Of The Lord Advocate's Refusal To Hold A Fatal Accident Inquiry
| Jurisdiction | Scotland |
| Judge | Lady Smith |
| Judgment Date | 2007 |
| Neutral Citation | [2007] CSOH 184 |
| Court | Court of Session |
| Published date | 16 November 2007 |
| Date | 16 November 2007 |
| Docket Number | 6/21 |
| Year | 2007 |
| OUTER HOUSE, COURT OF SESSION [2007] CSOH 184 | |
| OPINION OF LADY SMITH in the Petition of ALICE EMMS Petitioner; for Judicial Review of the Lord Advocate's refusal to hold a Fatal Accident Inquiry ________________ |
Petitioner: Bovey Q.C., Caskie; Thompsons
Respondent: Moynihan Q.C., Smith; M Sinclair, Solicitor to the Scottish Executive
16 November 2007
Introduction
[1] This petition for judicial review is brought by the mother of the late George Emms ("the deceased") who died whilst a patient in St John's Hospital Livingston. He was aged 49 years at the date of his death.
[2] First orders were granted on 1 April 2007 and the petition was served on the Lord Advocate, who is the only respondent, on 2 May 2007.
[3] The petition arises out of the refusal of the procurator fiscal at Linlithgow to hold a Fatal Accident Inquiry ("FAI") under the Fatal Accidents and Sudden Deaths Inquiries (Scotland) Act 1976 ("the 1976 Act") in respect of the death of the deceased. The Lord Advocate also refused to order that such an inquiry be held. She had, however, made no decision on the matter at the time the present petition was served. She had the issue of whether or not to do so under consideration at that time, had instructed an independent expert report and was, to the knowledge of the petitioner, awaiting that report. On 6 June 2007, after having received that report, she decided not to hold such an inquiry. Following amendment to the original petition it is that decision and only that decision which the petitioner seeks to have reviewed.
[4] The orders sought by the petitioner are:
1. reduction of the respondent's decision of 6 June 2007;
2. declarator that the respondent's refusal is incompatible with Article 2 of the European Convention on Human Rights and that the petitioner is entitled to an independent, effective and reasonably prompt public inquiry into the death of the late George Emms, at which his next of kin can be legally represented, provided with the relevant material and able to cross examine the principal witnesses; and
3. an order ordaining the respondent to cause such an inquiry to be held.
Background
[5] The deceased was admitted to hospital on 25 August 2004 with a history of breathlessness and pyrexia. He had a complex medical history including pre-existing brain damage, diabetes mellitus, and he suffered from hepatitis C and epilepsy, the latter as a result of having had encephalitis during childhood and a stroke in 1993. He had learning difficulties and was an adult to whom the provisions of the Adults with Incapacity (Scotland) Act 2000 applied. He was having difficulty in swallowing when he was admitted to hospital. Subsequent to his admission, it was decided that he needed to be fed artificially. On 1 September 2004, a percutaneous endoscopic gastrostomy ("PEG") was inserted through his abdomen into his stomach. A PEG involves a tube and valve via which the patient can be fed, hydrated and have liquid medication administered.
[6] On 8 September 2004, the deceased died. A post mortem was carried out by Professor Busuttil and he concluded that the cause of death, as recorded on the death certificate was:
"1(a) Septicaemia
(b) Combined effects of Inhalation of Gastric contents and peritonitis
(c) Insertion of a Feeding Gastric Tube
(d) Encephalitis and Stroke
II Diabetes Mellitus; Hepatitis C; Chronic Pancreatitis and Cholelithiasis."
[7] Professor Busuttil's post mortem report is dated 13 September 2004 and concludes with the following commentary:
"This man had swallowing difficulties brought on by brain changes resulting from his encephalitis and strokes. To deal with this a PEG was passed into his stomach under a local anaesthetic. He had required surgery to his upper abdomen in the past and an upper abdominal scar was present as well as nylon sutures within the tissues. As such, the local anatomy was distorted due to the presence of the adhesions and other changes consequent on this surgery. The tube, although appropriately sited, has leaked and as a consequence there was inflammation of the lining of the abdominal cavity (a peritonitis). This in turn led to systemic infection, i.e. blood poisoning (a septicaemia).
He was also a diabetic and as such his immunity would have been deficient and thus he would have been less able to deal with any intra- abdominal infection."
[8] Whilst Mr Bovey sought to suggest that Professor Busuttil could be read as, in his last paragraph, voicing some criticism of the deceased's treatment, I do not see that it can. He seems there to state no more than that the deceased's pre existing diabetes would have rendered him more vulnerable to the effects of infection.
[9] Professor Busuttil provided two further reports. The first is dated 23 November 2004 and in it he states:
"I am not personally familiar with the procedure by which a P.E.G tube is inserted. In retrospect however the fever, which developed a few days after its insertion, may have suggested a leak therefrom. This man had a large number of other medical conditions which predisposed him to infection and to poor healing - not least his diabetes, and as such the complication of his PEG insertion has to be viewed in this context."
[10] The second is dated 11 January 2005 and in it he answers some specific enquiries which had been put to him by Dr Williams, gastroenterologist at St John's Hospital. Dr Williams had been present at the post mortem and had had to respond to enquiries made of him by the procurator fiscal. Professor Busuttil states, in this report:
"I have no doubt whatsoever from what you told me that:
(a) the PEG was essential for this man
(b) it was appropriately inserted
(c) the family knew what it was required for and understood fully the complications inherent in this procedure
This 49 year old man was a person whose immunity and perhaps also his repair processes were impaired due to the large number of concomitant serious conditions that he also suffered from not least his post pancreatic (presumably) diabetes."
[11] He added that he knew the family still had questions they wished answered, particularly in relation to the PEG insertion and he was sure that the procurator fiscal would be seeking expert advice in that respect. He did not feel able to respond from any personal knowledge of the procedure himself.
[12] St John's Hospital carried out a Critical Incident Review ("CIR") in respect of the death of the deceased and of another patient who had also died in September 2004 after the insertion of a PEG. The CIR did not attribute the death of the deceased to any failing on the part of those responsible for his care. It did identify that the deceased had not received insulin on 4 September 2004 but concluded that that had not contributed to his death; his blood sugar readings for that day and the following day were not significantly elevated. It noted that the care he received on 4 September, a weekend day, was not recorded but that was not exceptional and it is evident that his vital signs and blood sugars were recorded. His antibiotic therapy is noted without adverse comment.
[13] It is evident from the documents produced that the deceased's family had a concern about the use of the PEG in the deceased's case and raised it with the procurator fiscal. The procurator fiscal made enquiries of consultants at the hospital and of Professor Busuttil and, having done so, had no particular concerns. He was, however, prepared to instruct an independent expert and appears to have sought confirmation from the petitioner's solicitor, both of her present agents and of her previous agents, that they were happy with the identity of the expert proposed. By letter dated 6 October 2005 to her solicitors, he reminded them that he was still waiting to hear from them in that regard and indicating that if he had not heard from them by the end of the month then the papers would be passed to Crown Office. The agents' response, by letter dated 17 October 2005, was that the instruction of an expert was a matter for the procurator fiscal and that they would be raising with him the matter of a Fatal Accident Inquiry.
[14] The procurator fiscal, by letter dated 9 November 2005, intimated that, in the light of his investigations including what was contained in the hospital's CIR and the content of full discussion with Professor Busuttil, he did not feel it was necessary to seek an expert opinion.
[15] The petitioner's agents continued to press for an FAI.
[16] By letter dated 25 November 2005, under reference to the same matters as relied on in his letter of 9 November and also to having discussed matters with Dr Williams, the procurator fiscal intimated that he did not feel that it was appropriate to hold an FAI. He confirmed that he did not consider that it was in the public interest that he hold one.
[17] All the documents relied on by the procurator fiscal were made available to the petitioner's agents.
[18] The petitioner's agents again continued to press for an FAI.
[19] Correspondence continued between the petitioner's agents and the procurator fiscal during the latter part of 2005 and 2006 in the course of which the petitioner's continued to press for an FAI and the procurator fiscal persisted in his refusal.
[20] At some point, which appears to have been whilst the petitioner's previous agents were acting and therefore probably some time prior to October 2005, the petitioner had intimated a claim to Lothian Health Board, as the body responsible for St John's Hospital and the medical and other staff employed there. By letter dated 4 July 2006, the petitioner's agents confirmed that they would not be claiming in respect of the actings of Wendy Pilkington, a person who was "aware of the deceased ..." but she is the only person in respect of whom they gave such confirmation. They did not, for instance, give any such indication in respect of those responsible for the...
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