AS TO THE ADMISSIBILITY OF
Application No. 28323/95
by Clara BUCKLEY
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 26 February 1997, the following members being present:
Mrs. J. LIDDY, President
MM. E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 16 May 1995 by
Clara BUCKLEY against the United Kingdom and registered on
30 August 1995 under file No. 28323/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1934 and resident in
London. She is represented before the Commission by Ms. Kate Harrison,
a solicitor practising in London. The facts as represented by the
applicant may be summarised as follows.
A. Particular circumstances of the case
The applicant is the mother of Orville Blackwood, who died in
Broadmoor Hospital on 28 August 1991, where he was detained under the
Mental Health Act 1983. Orville Blackwood died after having been
injected with Fluphenazine Decanoate (Modecate 150mg intramuscularly)
and Promazine (Sparine 150 mg intramuscularly). The drugs were
administered without consent.
Orville Blackwood was born in Jamaica on 19 June 1960. He came
to the United Kingdom as a baby with his mother and other siblings and
obtained British Nationality on 4 July 1989. He had a history of court
appearances, dating from young adolescence, mainly for theft and
burglary. He had served custodial sentences in a detention centre,
borstal and prison.
In 1982 Orville Blackwood was first admitted to psychiatric
hospital with a history of disturbed and aggressive behaviour.
Thereafter he was frequently admitted on compulsory detention orders
under the Mental Health Act 1983. He was noted to have psychotic
symptoms including delusional ideas, auditory hallucinations and
thought disorder, resulting in aggressive behaviour. He appears to
have responded well to anti-psychotic treatment on most occasions.
During these admissions he was described as being a major management
problem, violent towards others and threatening to harm himself. He
was diagnosed as suffering from a paranoid schizophrenic illness,
possibly induced by drugs. In April 1986 he was convicted of robbery
and the possession of an imitation firearm with intent and sentenced
to 4 years imprisonment. He was detained in the prison system and
subsequently placed in the psychiatric wing of HMP Grendon Underwood.
In 1987 he was referred to a regional secure unit, but his behaviour
there was so disturbed that he was transferred to Broadmoor on
20 October 1987. After 11 September 1988, the earliest date of release
from his prison sentence, Orville Blackwood was detained in hospital
under the Mental Health Act 1983.
On the 27 August 1991, the day before his death, his clinical
notes state that he was argumentative. On 28 August 1991 after an
incident when he refused to attend occupational therapy and shouted his
objections, he became agitated and a decision was made by the Charge
Nurse that he should go to a seclusion room. The patient went
voluntarily. On the afternoon of 28 August 1991 Orville Blackwood was
reviewed by the junior hospital doctor, and as the patient was refusing
to take any form of medication, the doctor decided medication would be
administered by injection. It had previously been agreed by the
consultant psychiatrist that Orville Blackwood should receive a depot
neuroleptic injection in the form of intramuscular Fluphenazine, at a
dose of 150mg. The doctor decided in view of Orville Blackwood's
aggressive, uncooperative manner, to administer an intramuscular
injection of a phenothiazine drug into his other buttock, to achieve
a more immediate response. A number of nurses entered the room, in
which the patient was being detained, they applied a degree of
restraint, and he then received an injection of Fluphenazine Decanoate
(Modecate 150 mg intramuscularly) and an injection of Promazine
(Sparine 150 mg intramuscularly). Within minutes the patient collapsed.
Attempts were made to resuscitate him. He was taken to the casualty
department at a local general hospital, where further unsuccessful
attempts at resuscitation were made.
Two inquests were held into Orville Blackwood's death. The first,
in October 1991, returned a verdict of "Accidental Death", with the
cause of death being given by the pathologist as "Cardiac failure
associated with the administration of Phenothiazine Drugs". A second
inquest was held from 29 March to 2 April 1993 and confirmed the
verdict of the first.
In 1991, the Special Hospitals Services Authority, which is
responsible for the management of special psychiatric institutions, set
up a Committee of Inquiry to investigate the circumstances of Orville
Blackwood's death, to examine the previous inquiry reports in the cases
of two other Afro-Caribbean patients who died in Broadmoor in 1984 and
1988 in order to identify any similarities and to make recommendations.
In the report published in 1993, the Committee noted a concern for the
decision taken on 28 August 1991 to seclude Orville Blackwood which
seemed based on an exaggerated anticipation of danger and taken without
any attempt to discuss his objections to occupational therapy. It
nonetheless found that it was an understandable decision in light of
the ethos on the ward and the pervasive sense of ever present danger.
It also commented critically on the amount of sparine injected which
exceeded the recommended level (150mg instead of 50mg) and on the
decision to inject two drugs (sparine and modecate) on the same
occasion, rather than allowing the faster-acting one first to take
effect. It made a number of recommendations with regard to reviewing
the continued use in Broadmoor of sparine and the undesirability for
a doctor who has been involved in an incident with a patient (threat
or assault) to take an immediate decision to adjust treatment without
consulting other medical staff. The report further recommended that
extreme caution should be taken in injecting struggling patients, and
that wherever possible this should be avoided.
The applicant instructed solicitors with a view to taking
proceedings. The opinion of a consultant psychiatrist was sought. His
report dated 31 October 1994 concluded there had been no medical
negligence and that the death was not caused by either the choice or
combination of the drugs used or the manner in which the drugs were
injected. Counsel's opinion was sought at a conference, attended by the
consultant psychiatrist (author of report 31 October 1994), the
applicant and her solicitors. The consultant psychiatrist reaffirmed
his view that the actions of the hospital did not amount to negligence
and counsel advised that there was not a "better than even" chance of
success. By letter dated 17 November 1994, the applicant was advised
by her solicitors that without a medical opinion supporting the
allegation that medical negligence was involved in the death, the case
would not be able to proceed further. On 4 March 1995 the applicant's
legal aid certificate was discharged on the grounds that counsel's
opinion did not consider there to be a reasonable prospect of success
in the action.
B. Relevant domestic law and practice
Detention
Under the Mental Health Act 1983 a person transferred from prison
to hospital can be detained after the expiry of their sentence.
Consent to treatment
Part IV of the Mental Health Act 1983 concerns consent to
treatment and is applicable to patients who are liable to be detained.
Under Part IV of the Mental Health Act 1983:
The consent of a patient is not required for any medical
treatment given to him for the mental disorder from which he is
suffering, not being one of the specific treatments requiring consent
and/or a second opinion under the Act, provided the treatment is given
by or under the direction of the medical practitioner in charge of the
treatment of the patient. (Section 63)
Protection for acts done in pursuance of the Mental Health Act
1983
No person will be liable, whether on the ground of want of
jurisdiction or on any other ground, to any civil or criminal
proceedings to which he would have been liable in respect of any act
purporting to be done in pursuance of the Mental Health Act 1983 or any
regulations or rules made under the Act, unless the act in question was
done in bad faith or without reasonable care. (Section 139).
The protection provided does not prevent the High Court from
entertaining an application for judicial review in respect of an act
done in pursuance of the 1983 Act.
The protection does not apply to proceedings against the
Secretary of State, a health authority, a special health authority
(such as controlled Broadmoor Hospital), or a national health service
trust. (Section 139)
COMPLAINTS
The applicant invokes Articles 2, 3, 8, 13 and 14 of the
Convention.
The applicant complains that the death of Orville Blackwood
constituted a violation of Article 2 and that the treatment of her son
was inhuman or degrading treatment or punishment in violation of
Article 3.
The applicant complains that the Mental Health Act 1983 permitted
the treatment, namely the administration of the stated psychiatric
drugs in the stated doses, which caused her son's death.
The applicant submits that the enforced medical treatment of
Orville Blackwood was a violation of the right to respect for private
life under Article 8 of the Convention.
The applicant complains that the Mental Health Act 1983 and in
particular section 139, which concerns the protection for acts done in
pursuance of the said Act, in combination with the law of negligence,
resulted in there being no effective remedy before a national authority
in breach of Article 13.
The applicant considers that her son suffered discrimination
contrary to Article 14, on the ground of race and his status as a
patient detained in a special hospital under the Mental Health Act
1983.
THE LAW
1. The applicant is the mother of Orville Blackwood and complains
of violations of the Convention arising from the treatment of and
circumstances surrounding the death of her son.
2. The Commission notes that the applicant has not pursued a claim
for medical negligence or any proceedings relating to the
circumstances of Orville Blackwood's death. Whilst the Commission
considers this raises, prima facie, the issue of non-exhaustion of
domestic remedies, the Commission finds it unnecessary to resolve this
issue as the application is in any event manifestly ill-founded for the
reasons below.
3. The applicant complains of a violation of Article 2 (Art. 2) in
respect of the death of Orville Blackwood.
Article 2 (Art. 2) of the Convention provides:
"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 following his conviction of a crime for
which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in
contravention of this Article when it results from the use of
force which is no more than absolutely necessary:
a. in defence of any person from unlawful violence;
b. in order to effect a lawful arrest or to prevent the
escape of a person lawfully detained;
c. in action lawfully taken for the purpose of quelling
a riot or insurrection."
The Commission notes that two inquests were held into Orville
Blackwood's death, the first recording a finding of "accidental death"
and the second confirming this finding. Further the Commission notes
that the applicant's own medical (consultant psychiatrist) and legal
(solicitors and counsel) advisors were unable to conclude that there
had been any negligence on the part of the hospital in relation to
Orville Blackwood's death, and in consequence no domestic proceedings
were commenced.
The Commission notes the concerns and recommendations of the
committee of inquiry which investigated the circumstances of Orville
Blackwood's death, including the concern surrounding the decision to
seclude Orville Blackwood on the day of his death, and the dosage and
combination of drugs injected to a struggling patient. However the
Commission does not find that the circumstances, as presented to the
Commission, disclose any failure, substantive or procedural, to protect
the applicant's right to life as required by Article 2 (Art. 2.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2).
4. The applicant complains under Article 3 (Art. 3), in relation to
the treatment of Orville Blackwood by the hospital staff.
Article 3 (Art. 3) of the Convention provides as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Commission recalls that in the Eur. Court HR, Ireland v.
United Kingdom judgment of 18 January 1978, Series A no. 25 p. 65
para. 162 it was held:
"ill-treatment must attain a minimum level of severity if it is
to fall within the scope of Article 3 (Art. 3). The assessment
of this minimum is, in the nature of things, relative; it depends
on all the circumstances of the case, such as the duration of the
treatment, its physical or mental effects and in some cases, the
sex, age and state of health of the victim, etc."
The Commission notes the findings of the committee of inquiry,
which was set up to investigate the treatment of Orville Blackwood and
the circumstances surrounding his death. However, none of the
circumstances as presented to the Commission discloses that the
treatment of Orville Blackwood was anything other than part of a
therapeutic regime. The Commission recalls that as a general rule, a
measure which is a therapeutic necessity cannot be regarded as inhuman
or degrading (see Eur. Court HR, Herczegfalvy v. Austria judgment of
24 September 1992). Taking into account the fact the applicant's own
medical expert found no grounds on which to criticise the hospital for
negligent treatment, the Commission finds no grounds on which to depart
from the general rule. The Commission thus does not find, in the
circumstances as presented to it, there to have been any treatment
amounting to a violation of Article 3 (Art. 3).
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
5. The applicant also complains under Article 8 (Art. 8) of the
Convention, the right to respect for private life. The Commission
considers, for the reasons given above, that in the circumstances of
the case there is no appearance of a violation of Article 8 (Art. 8)
of the Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
6. The applicant complains under Article 14 (Art. 14) of the
Convention, in respect of discriminatory treatment of Orville
Blackwood, either on grounds of race, or due to his status as a patient
detained in a special hospital under the Mental Health Act 1983.
Article 14 (Art. 14) of the Convention provides as follows:
"The enjoyment of the rights and freedoms set forth in this
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 Commission finds no evidence of discrimination in respect of
the treatment of Orville Blackwood either on grounds of race, or his
status as a patient detained in a special hospital under the Mental
Health Act 1983.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
7. The applicant further complains that under Article 13 (Art. 13)
there was no effective protection for acts done under the Mental Health
Act 1983 and no effective remedy before a national authority.
Article 13 (Art. 13) of the Convention provides as follows:
"Everyone whose rights and freedoms as set forth in this
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 Commission recalls that Article 13 (Art. 13) does not require
a remedy under domestic law in respect of any alleged violation of the
Convention. It only applies if the individual can be said to have an
"arguable claim" of a violation of the Convention (Eur. Court HR, Boyle
and Rice v United Kingdom judgment of 27 April 1988, Series A no. 131,
p. 23 para. 52).
The Commission finds that it cannot be said that this application
discloses any "arguable claim" of a violation of Convention rights.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy