AS TO THE ADMISSIBILITY OF
Application No. 27229/95
by Susan KEENAN
against the United Kingdom
The European Commission of Human Rights sitting in private on
22 May 1998, the following members being present:
MM S. TRECHSEL, President
J.-C. GEUS
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
H. DANELIUS
Mrs G.H. THUNE
Mr C.L. ROZAKIS
Mrs J. LIDDY
MM I. CABRAL BARRETO
N. BRATZA
I. BÉKÉS
A. PERENIC
C. BÎRSAN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
Mr A. ARABADJIEV
Mr M. de SALVIA, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 28 February 1995
by Susan KEENAN against the United Kingdom and registered on 4 May 1995
under file No. 27229/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations and information submitted by the respondent
Government on 9 August 1996 ;
- the observations submitted by the applicant on 6 May 1998;
- the parties' oral submissions at the hearing on 22 May 1998;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen, born in 1935, and resident
in Ilfracombe, North Devon. She is represented before the Commission
by Messrs Toller Beattie, solicitors practising at Braunton.
The facts, as submitted by the parties, may be summarised as
follows.
a. Particular circumstances of the case
The applicant is the mother of Mark Keenan who on 15 May 1993,
at the age of 28, died from asphyxia caused by self-suspension whilst
serving a sentence of 4 months' imprisonment at HM Prison, Exeter.
From the age of 21 Mark Keenan received intermittent treatment
in the form of anti-psychotic medication for a condition which it
appears was first diagnosed whilst he was serving a four year prison
sentence for assault. It appears to have been reported by Mark Keenan
that he was diagnosed as suffering from paranoid schizophrenia.
Following his release from prison in 1988 Mark Keenan's general
practitioner continued the prescription of anti-psychotic medication.
His medical history had included symptoms of paranoia,
aggression, violence and deliberate self-harm, and his behaviour was
sometimes unpredictable. In November/December 1992, shortly before he
was admitted to prison, he had received treatment at North Devon
District Hospital following two incidents in which he had injected
himself with overdoses of insulin. Following the first incident, on
9 November 1992, it was noted that he was complaining of paranoia.
Diagnoses of borderline personality disorder and paranoid schizophrenia
were made and it was noted that he had a history of frequent episodes
of deliberate self-harm. He was discharged after 10 days on a
prescription of anti-psychotic medication. The second incident, on
16 December 1992, was associated with the breakdown in the relationship
with his girlfriend. The admission notes recorded as diagnoses
"Personality disorder. Paranoid psychosis. Suicide threats." He
discharged himself on 18 December 1992.
On the same day he was admitted to HM Prison Exeter having been
remanded in custody following an assault on his girlfriend. On
admission he was received by the prison's health care centre for
observation and assessment having given a history of suffering from
paranoid schizophrenia.
On 21 December 1992 an attempt was made to transfer him from the
health care centre to ordinary location. Later the same day he was re-
admitted to the health care centre because he had been kicking at his
cell door and appeared paranoid to prison staff. The explanation
provided by Mark Keenan was that he had taken some cannabis which had
tripped him out and made him paranoid, shaky and tense. Subsequently,
on 23 December 1992, he was discharged to ordinary location having been
assessed as fine, with no psychiatric symptoms, cheerful and coping.
By the evening he was complaining that he was "cracking up". He was
advised to "calm down and think positively about going to court
tomorrow". In the event, on 24 December 1992, he was released on
bail.
Mark Keenan was re-admitted to HM Prison, Exeter on 1 April 1993
having been convicted of the assault on his girlfriend. He was again
received by the prison's health care centre for observation and
assessment. On 5 April 1993, Dr Keith, the prison's senior medical
officer, consulted Dr Roberts, the consultant psychiatrist who had been
treating Mark Keenan before his admission to prison. Dr Roberts
advised that Mark Keenan had a personality disorder with anti-social
traits and that under stress he disclosed some fleeting paranoid
symptoms. He concurred with the medication which Dr Keith had
prescribed, but advised that Mark Keenan should be treated
symptomatically.
On 14 April 1993, Mark Keenan barricaded himself into the ward
room of the health care centre in protest against his proposed transfer
to ordinary location. On 16 April 1993 he was discharged to ordinary
location but re-admitted to the health care centre the following
evening after his cell-mate reported that Mark Keenan was uptight and
had fashioned a noose from a bed sheet which he was keeping under his
bed. On his return to the health care centre Mark Keenan was placed
in an unfurnished cell and put on a 15 minute watch. The entry in his
medical notes for 17 April 1993 records:
"Brought to Health Care Unit at 21.30 hours ... states he
will hang himself. A noose has been made out of strips of
sheets. In conversation with Keenan, pressure from kitchen workers who have stated they will contaminate his food etc. The look of relief on his face was great when I told him he will have to stay here." A subsequent entry, on 18 April 1993, records "owes on wing hence can't cope On 23 April 1993, it was decided that Mark Keenan should be assessed by the prison's visiting psychiatrist, Dr Rowe. On 26 April 1993, before he had been assessed, a further attempt was made to transfer him to ordinary location. He was re-admitted to the health care centre the following day. The entry in his medical notes for 27 April 1993 records: "Brought to treatment room shaking and hyperventilating. Declined any further medication. Unable to cope. Admitted to health care centre for observation and assessment. Seen at 17.45 hours. He says he felt panicky and paranoid in main prison. He felt he was going to be attacked. He felt he might have to defend himself. Located in single cell on lower landing." On 29 April 1993, Mark Keenan was assessed by Dr Rowe. Dr Rowe, who did not express an opinion that it was currently necessary to transfer Mark Keenan to a hospital for psychiatric treatment, prescribed a change in his medication, and recorded in his medical notes: "He is an old patient of mine who suffers from a mild, chronic psychosis. He is not usually violent, although he is easily stressed and then can be unpredictable." On 30 April 1993, the question of moving Mark Keenan to ordinary location was again raised with him. The entry in his medical notes for 30 April 1993 records: "He does not feel fit for afraid he might be injured, further mention of paranoia by him. To remain in a single cell." In the course of the day his mental state was noted to deteriorate, with evidence of aggression and paranoia. Dr Searl considered that the change in medication might be responsible and therefore prescribed a return to his previous medication. At 6 p.m. Mark Keenan assaulted two hospital officers, one seriously. Following the assault he was placed in an unfurnished cell within the health care centre and put on a 15 minute watch. On 1 May 1993, Dr Bickerton certified Mark Keenan fit for adjudication in respect of the assault and fit for placement in the segregation unit within the prison's punishment block. He recorded in Mark Keenan's medical notes for 1 May 1993: "Calm and rational. No sign of mental illness. Slept well, feels relaxed. Claims he was frustrated yesterday and this is why he attacked the officer. Fit for normal cellular confinement in punishment block." The same day, Mr McCombe, the prison's deputy governor, ordered Mark Keenan to be placed in segregation in the punishment block under Prison Rule 43. Mr McCombe considered segregation appropriate as Mark Keenan's behaviour was unpredictable and he posed a threat to staff. No date appears to have been given for his release from segregation. Whilst in segregation, Mark Keenan would have been locked up alone for of the order of 23 hours each day. Although the segregation unit was visited each day by a doctor, the prison chaplain and the prison governor, Mark Keenan would, in contrast to location within the health care centre or the main prison, have had minimal contact with staff, and none with fellow prisoners. On 1 May 1993, following his transfer to the segregation unit Mark Keenan requested a listener (a prisoner trained by the Samaritans in the counselling of inmates who may be suicidal). At 6.05 p.m. Mr Gill, one of the prison's hospital officers, was contacted after Mark Keenan had indicated to prison officers on the segregation unit that he was feeling suicidal. The medical notes record: "Went to see the referral of an inmate, perceived to be a suicide risk, to the medical officer). Listener in cell with inmate. Reassurances given that he is not suicidal but tense, agitated At 6.45 p.m., however, Mark Keenan was threatening to harm himself and was therefore transferred to an unfurnished cell in the hospital wing and put on a 15 minute watch. At 7.45 p.m. Dr Bickerton attempted to speak to Mark Keenan through his cell door. Whilst noting that he appeared very agitated and distressed, and claimed to be hearing voices and thinking he was Jesus Christ, Dr Bickerton doubted that Mark Keenan was suffering from any psychotic illness. Mark Keenan's medical notes record that he spent the greater part of the night banging and kicking his cell door, shouting obscenities and making threats to prison staff. On 2 May 1993 Dr Simkin recorded in Mark Keenan's medical notes: "This morning denying he is suicidal. Verbally abusive to staff. Some bruises from hitting door. This man is a considerable hazard to staff and has become obnoxious to other hospital inmates due to his behaviour. He is unpredictable and has made threats to his life. He has been placed on Rule 43. I have explained to him that his remaining in the his attitude in the next 24 hours. I will increase chlorpromazine to 400mg qds and resume Kemadrin and chloral nocte. He says he will not take medication." The medical notes for 3 May 1993 record: " a.m. - very much better in attitude. Slept well. Requests to return to Mark Keenan was duly returned to the segregation unit. A note in the segregation unit's occurrence book for 3 May 1993 records: "Keenan more lucid than before, however still needs watching. At tea time Keenan asked to he felt he was "going into one", which I took to mean kicking off ... staff beware." The medical notes record that at 9 p.m. : "Troublesome in block. Given extra chlorpromazine. Seemed to calm down after a chat. If he is talking suicidally overnight then unfurnish his block cell and review 'mane' Save for a short note on 4 May 1993 that at "11.00 hours clopixol 500mg given", no further entry was made in Mark Keenan's medical notes from the 3 May 1993 until his suicide on 15 May 1993. Dr Bradley, who saw Mark Keenan in the course of routine morning visits to the segregation unit on 4 to 7 and 10 to 14 May 1993, recalls: " ... We had the cell door open on the majority of occasions. I recall there may have been one time when I spoke through his glass window ... but that was because they were short of staff. He had the opportunity to talk to me. We discussed his medication. He never mentioned any feelings of depression to me or not coping. On the whole Keenan appeared calm and with it with me. He appeared clear and not disturbed. I also checked with the staff as to his behaviour through the day, and they replied that there was nothing that concerned them." The occurrence book for the segregation unit records, however, that on 4 May 1993: "Keenan abusive, aggressive and offering violence to staff. Relocated to Keenan phone call to solicitor at 10.00 hours re assault on H/O Dent. On return states he will behave himself. Relocated to The entry for 6 May 1993 records: "Keenan refused cup of tea. Said there was something out in it. When told that there was nothing out in it he decided to drink it. He is starting to act very strange. Staff to be aware." The entry for 7 May 1993 records: "Keenan seen by doctor. Refused medication. Staff to still offer medication. To be logged if taken or refused." Following the entry on 7 May 1993 there is reference to the fact that on 8, 9 and 10 May 1993 he accepted his medication. Thereafter there is no reference to Mark Keenan in the occurrence book until his suicide on 15 May 1993. In a letter to his mother, dated 13 May 1993, he complained that the state of his mind was not very good. On 14 May 1993, Dr Bradley assessed Mark Keenan to be fit for adjudication in respect of his assault on the two prison officers on 30 April 1993. The record of the adjudication contains the certification by the doctor that he was fit for adjudication and for cellular confinement. The doctor added the observations: "At the time of the alleged offence Mr. Keenan was receiving medication for a chronic psychiatric problem and he had had a recent change in medication." At the adjudication on 14 May 1993 Mark Keenan was found guilty of assault and awarded 28 additional days in prison together with 7 days loss of association and exclusion from work. At that point, Mark Keenan had only nine days before his expected release date. The sentence had the effect of delaying his release date from 23 May 1992 until 20 June 1993. Shortly after the adjudication Mark Keenan was seen by the chaplain who recalls that he was unhappy about the decision and stated "I was thinking of kicking off, but I don't think I will", but that at no stage did he indicate that he might take his own life. At 9.45 the following morning, on 15 May 1993, Mark Keenan was seen by Dr Bickerton who recalls that he seemed calm, polite and relaxed. He was then seen by deputy governor McCombe, whom he assaulted. He was described by Mr McCombe as having been in a highly agitated state, but relaxing when he was informed that his right to buy tobacco had not been suspended. In the afternoon Mark Keenan was visited by a friend, M. T., whom he had known for about 5 years. M.T., who saw Mark Keenan for some 20 minutes, found him to be disappointed that he had an additional 28 days to serve in prison, but otherwise in good spirits and, when M.T. left, as looking forward to his next visit the following Saturday. Prison officer Haley, who returned Mark Keenan to his cell following the visit, recalls that Mark Keenan was very talkative and appeared in high spirits. Prison officer Milne, who saw Mark Keenan at or about 5.15 p.m., recalls that he seemed alright and asked if he could use the telephone at 6 p.m.. Milne agreed, but in the event it does not appear that Mark Keenan was allowed out of his cell to make the call. At 6.35 p.m., on 15 May 1993, Mark Keenan was discovered hanging from the bars of his cell by a ligature fashioned out of a bed sheet. At 7.05 p.m. he was pronounced dead. At some point before he committed suicide Mark Keenan depressed the call button in his cell. It would not have been possible for him to depress the call button whilst suspended. It was prison officer Milne's evidence at the Inquest that Mark Keenan must have pressed the call button during the 10 minutes when he was using the staff toilets since the light on the landing, which would have indicated that the call button had been depressed, was not on when he left. In an undated letter, received by Dr Roberts after 15 May 1993, Mark Keenan wrote: "As you will well know I am in prison for assault on G. S., which I received 4 months. I cannot take much more. I have seen Dr Rowe in here he wrote me up for some new tablets fenzodine white tablets like white smarties. I just went mad on them, and ended up on assault on two staff. I am asking you if you can give me treatment when I get out and get me better. I was using drugs in Bmth as well, I feel very unstable but the doctor will not help me at all. I need help please could you send the Governor a report on me, I can't take much more." On 25 August 1993, at the Inquest before a Coroner, the jury recorded a verdict of death by misadventure and that the cause of death was asphyxiation by hanging. On 17 November 1993, the applicant obtained legal aid limited to obtaining further evidence and counsel's opinion on the merits and quantum of damages in a potential action against the Home Office in respect of the treatment of her son and the conditions of his detention. In a report dated 17 August 1994, the consultant forensic psychiatrist instructed by the applicant's solicitors expressed his opinion that Mark Keenan, as prisoner suffering from paranoid schizophrenia, was unfit to be placed in segregation in the punishment block and that the failure of the prison authorities to accommodate him in the hospital wing was an important contributory factor to his death. In an advice dated 14 October 1994, counsel advised in light of the psychiatrist's report that notwithstanding the grave breach of duty by the Prison Service in keeping Mark Keenan, a mentally ill prisoner, in a punishment cell without any proper medical monitoring, an action in negligence under the Law Reform (Miscellaneous Provisions) Act 1934 would not succeed since there was no evidence that Mark Keenan had suffered any injury of a kind in respect of which a cause of action could be maintained. He was already mentally ill and there was no indication that he suffered any worsening in his condition, or developed any new condition as a result of his confinement. Mere distress was insufficient and the fact of his death was not such as in English law to constitute an injury in respect of which a cause of action lay. In respect of proceedings under the Fatal Accidents Act 1976, counsel advised that since Mark Keenan was over 18 when he died the applicant did not qualify for bereavement damages, there were no dependents who might be able to pursue a claim, and to the extent the applicant might have incurred any funeral expenses these were not sufficient to justify the support of legal aid. The effect of this advice was to prevent the applicant from pursuing any contemplated litigation since, in light of the advice, legal aid would be withdrawn. By letter of 12 December 1994, the applicant was informed by the Legal Aid Board that they were considering whether to discharge her legal aid certificate in light of counsel's opinion that she had no reasonable prospect of success. By decision of 8 March 1995, the Legal Aid Board discharged her legal aid certificate since it was unreasonable in the circumstances that she continue to receive assistance. In another report, dated 15 February 1995, a second consultant psychiatrist instructed by the applicant's solicitors expressed the opinion that Mark Keenan suffered from paranoid schizophrenia, that he was recognisably in one of the very highest suicide risk groups, that his confinement within the segregation unit was likely to have aroused in him feelings of terror, hopelessness, anguish and inferiority, that his ability and will to cope with his illness would, in the circumstances of his confinement, have been cumulatively undermined and resulted in the taking of his own life. The consultant psychiatrist concluded that Mark Keenan's treatment during the last eleven days of his life had fallen substantially below what could be regarded as an acceptable standard of care. The applicant's legal aid was withdrawn by the Legal Aid Board on 8 March 1995 in light of counsel's advice. In a report dated 2 August 1996, Dr Keith, the prison's senior medical officer, in response to the psychiatric reports obtained on behalf of the applicant, disputed that Mark Keenan suffered from paranoid schizophrenia, or that any specific symptoms of schizophrenia were observed whilst he was in detention. Dr Keith stated that Mark Keenan was treated consistently with Dr Roberts' diagnosis as a patient suffering from a personality disorder with anti-social traits who displayed some fleeting paranoid symptoms when under stress. When he was perceived to present a risk he was admitted to the health care centre for observation. In a further report dated 17 March 1996, a consultant psychiatrist, Dr Faulk, instructed on behalf of the Government, expressed the opinion that those treating Mark Keenan at the prison, who were not consultant psychiatrists, were entitled to rely upon the diagnosis given by Dr Roberts, that in light of that diagnosis their treatment of Mark Keenan was appropriate, and that there was no evidence that Mark Keenan found being on the punishment block particularly disturbing, or that whilst there he had become psychotic. b. Relevant domestic law and practice Section 7 of the Prison Act 1952 requires each prison to have a medical officer who, pursuant to Rule 17 of the Prison Rules 1964 promulgated by the Secretary of State, is responsible for "the care of the health, mental and physical, of the prisoners in that prison". Rule 18 provides: "(1) The medical officer shall report to the governor on the case of any prisoner whose health is likely to be injuriously affected by continued imprisonment or any conditions of imprisonment. ... (2) The medical officer shall pay special attention to any prisoner whose mental condition appears to require it, and make any special arrangements which appear necessary for his supervision and care. (3) The medical officer shall inform the governor if he suspects any prisoner of having suicidal intentions, and the prisoner shall be placed under special observation." Health Care within prisons is also governed by Standing Order 13 which defines the responsibilities and duties of the members of a prisons health care team. Paragraph 31 provides: "The initial medical assessment of all prisoners to the health care centre on or shortly after reception into prison, or as a result of concern about their mental state, should include consideration of special arrangements needed for their supervision to prevent attempts to harm themselves or commit suicide. Where it is considered that special supervision is medically indicated the medical officer will order supervision in one of the following forms: (a) continuous supervision, in which the prisoner is observed by a designated officer who remains constantly in his or her presence; or (b) intermittent supervision in which the prisoner is observed by a designated officer at intervals of not more than 15 minutes." The Prison Service has also issued its own guidelines in the form of Circular Instruction 20/89 providing guidance, inter alia, relating to staff responsibilities, action on reception, referral and assessment during custody and preventative measures in respect of prison suicides. Circular Instruction 20/89 defined the task of the prison service as being: "to take all reasonable steps to identify prisoners who are developing suicidal feelings; to treat and manage them in ways that are humane and most likely to prevent suicide; and to promote recovery from suicidal crisis." Pursuant to sections 47 and 48 of the Mental Health Act 1983, any prisoner suffering from a serious mental illness may be transferred to a hospital for detention and treatment. Rule 43 of the Prison Rules 1964, pursuant to which Mark Keenan was placed in segregation, requires the prison governor to remove a prisoner from segregation in the event that a medical officer so advises on medical grounds. Rule 53(2) provides that no punishment in cellular confinement is to be imposed unless a medical officer has certified that the prisoner is in a sufficiently fit state of health. COMPLAINTS 1. The applicant complains that her rights under Article 2 of the Convention have been violated. She submits that the circumstances of her son's detention from 1 May 1993 until his death on 15 May 1993, bearing in mind his mental state and his history of threatening to kill himself in custody, amount to a violation of the State's duty to take appropriate steps to safeguard his life and to avoid action which might provoke, encourage or prompt him to kill himself. She further submits that the failure to take any special precautions to observe, counsel and treat her son while he was held in the punishment block amounts to an abdication of the State's duty to take steps to prevent him from ending his own life. 2. The applicant invokes Article 3 of the Convention in that the circumstances of her son's detention prior to his death amounted to inhuman or degrading treatment or punishment. She submits that her son was suffering from mental illness throughout the period from 1 May 1993 to 15 May 1993. Despite his medical condition, he was dealt with by the Governor as if he was mentally competent and placed in segregation in the punishment block of Exeter prison. The applicant alleges that the conditions of his confinement in the punishment block, while not necessarily amounting to inhuman or degrading treatment of a mentally fit prisoner, did amount to such treatment in her son's case given his known condition and history of mental illness. 3. The applicant also invokes Article 13 of the Convention in that she does not have an effective remedy in national law in respect of her son's death. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 28 February 1995 and registered on 4 May 1995. On 9 April 1996, the Commission decided to communicate the application to the respondent Government. The Government's written observations were submitted on 9 August 1996. By letter dated 31 October 1996 the applicant indicated that she did not propose to submit any observations in reply. On 8 September 1997, the Commission decided to invite the parties to attend an oral hearing on the admissibility and merits. On 6 May 1998, the applicant submitted observations in writing. At the hearing, which took place in Strasbourg on 22 May 1998, the Government were represented by Mrs Sally Langrish, as Agent, Mr Ian Burnett QC, Counsel and Mr Hugh Giles, Mr Laurence O'Dea, Mr Martin McHugh and Ms Mary Piper, as Advisers. The applicant, who attended, was represented by Mr Tim Owen, Counsel, Mr Alain Feinson and Ms Jayne Perring, Solicitors. The applicant and Ms Jayne Keenan, the sister of the deceased Mark Keenan, also attended. THE LAW The applicant complains that the circumstances of her son's detention from 1 May 1993 until his death on 15 May 1993 and the failure to take any special precautions to observe, counsel and treat her son whilst he was held in segregation in the punishment block, having regard to his mental state and history of threats to his own life, amount to a failure by the State to take appropriate steps to safeguard his life in breach of Article 2 (Art. 2) of the Convention. The applicant further complains that the conditions of her son's detention were, having regard to his mental state, such as to amount to inhuman and degrading treatment or punishment in breach of Article 3 (Art. 3) of the Convention. The applicant also invokes Article 13 (Art. 13) of the Convention in that she does not have an effective remedy in national law in respect of her son's death. The relevant provisions of the Convention provide: Article 2 (Art. 2) of the Convention "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." Article 3 (Art. 3) of the Convention "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." Article 13 (Art. 13) of the Convention "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." Article 26 (Art. 26) of the Convention The respondent Government argue first that the applicant has failed to observe the six month rule under Article 26 (Art. 26) of the Convention. The Government submit that since there was no domestic decision rejecting the applicant's complaint the six month period for the purposes of Article 26 (Art. 26) runs from the date of the deceased's death, namely 15 May 1993, whereas the application was introduced more than six months later on 28 February 1995. The Government contend that to hold otherwise in circumstances such as the present would enable an applicant or his lawyers to dictate when time is to run for the purposes of Article 26 (Art. 26). The applicant submits on this point that her application complies with the six month time-limit imposed by Article 26 (Art. 26) of the Convention, since it was introduced within six months of the decision of the Legal Aid Board discharging the legal aid certificate on 8 March 1995. Article 26 (Art. 26) provides: "The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken." The Commission recalls that the object of the six month limit under Article 26 (Art. 26) is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time, and past judgments are not continually open to challenge (see e.g. 9587/81, Dec. 13.12.82, DR 29, p. 228; 10626/83, Dec. 7.5.85, DR 42, p. 205). Further, the rule also affords the prospective applicant time to consider whether to lodge an application and, if so, to decide on the specific complaints and arguments to be raised (see eg. Eur. Court HR, Worm v. Austria judgment of 29 August 1997, Reports 1997-V, p. 1534, at p. 1547, paras. 32-33). The Commission further recalls its case law to the effect that where no domestic remedy is available the act or decision complained of will normally be taken as the "final decision" for the purposes of Article 26 (Art. 26). In these circumstances the Commission may only take cognizance of the applicant's substantive complaints provided the application was introduced within six months of the date of the act or decision complained of. (See, inter alia, Nos. 7379/76, Dec. 10.12.76, DR 8, p. 211; 8840/78, Dec. 16.7.80, DR 21, p. 138; 9599/81, Dec. 11.3.85, DR 42, p. 33). This approach is appropriate in circumstances where it is clear that from the outset no effective remedy was available to the applicant in respect of the act or decision complained of within the relevant domestic law. The Commission recalls, however, that Article 26 (Art. 26) cannot be interpreted in a manner which would require an applicant to seize the Commission of his complaint before his position in connection with the matter has finally been settled at the domestic level (see 9599/81, loc. cit.) Where, therefore, an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, the Commission considers that it may be appropriate for the purposes of Article 26 (Art. 26) to take the start of the six month period from the date when the applicant first became or ought to have become aware of the circumstances which rendered the remedy ineffective (see eg. No. 23654/94, Dec. 15.5.95, DR 81, p. 76). In the present case, the Commission observes that the applicant potentially had a remedy in respect of her son's death under the Law Reform (Miscellaneous Provisions) Act 1934. To this end the applicant applied for and was granted legal aid and through her legal advisers instructed a consultant psychiatrist to advise on the circumstances of her son's death. It was not until counsel had advised, in light of the report which had been obtained from the consultant psychiatrist, that the effect on the mental health of her son of the circumstances and conditions of his confinement was not such as to amount to damage in respect of which a cause of action would lie, that the applicant could, in the view of the Commission, reasonably have known that a remedy under the 1934 Act was ineffective. With respect to the Government's contention that to take the date of counsel's advice in the present case as the date of the final decision for the purposes of Article 26 (Art. 26) effectively leaves it open to the applicant's lawyers to dictate the start of the six month deadline, the Commission is of the view that such a consideration might be decisive in circumstances where there was evidence of abuse or dilatoriness on the part of an applicant or his or her lawyers. In the present case, however, the Commission finds no such evidence, and notes that counsel's advice was given in the formal context of legal aid, pursuant to the terms under which it had initially been granted by the responsible statutory body, for the purposes of advising whether legal aid should be maintained in light of the preliminary investigations which had been undertaken. In all the circumstances, the Commission considers it appropriate in the present case to take the start of the six month period under Article 26 (Art. 26) from the date of counsel's advice, namely 14 October 1994. It follows, therefore, that the present application which was introduced on 28 February 1995 is within six months of the aforementioned date, and the Government's objection that the application is out of time must accordingly be rejected. Further, insofar as the Government have submitted that it might theoretically have been possible for the applicant to pursue a remedy under the Fatal Accidents Act 1976, the Commission recalls that under the applicable law the applicant, as mother of a deceased aged over 18, would not have been eligible to claim bereavement damages or damages as a dependent. Counsel also advised the applicant that, even assuming she had incurred any funeral expenses, these would not have been sufficient to justify legal aid. In light of this opinion and in the circumstances of this case, the Commission does not consider that for the purposes of Article 26 (Art. 26) the applicant has failed to comply with the obligation under Article 26 (Art. 26) to exhaust domestic remedies in this respect. The substance of the case In respect of the applicant's complaint under Article 2 (Art. 2), the Government submit that there is no positive obligation cast on Contracting States by Article 2 (Art. 2) in respect of individuals who are competent to make rational decisions and thus exercise their own right of self-determination. The Government submit that Mark Keenan, whilst mentally ill, was capable of making rational decisions in the exercise of his right of self-determination in the last days of his life and thus no positive obligation was owed under Article 2 (Art. 2). In the alternative, the Government submit that if any positive obligation was owed then this was discharged. The Government submit that there was in place at the prison a comprehensive system of safeguards and procedures concerning suicide prevention. The Government assert that these safeguards and procedures were followed in Mark Keenan's case, and that the assessment and response of those in charge of his treatment and care to the risk which he presented was, in all the circumstances, when viewed objectively and without hindsight, reasonable and appropriate. In respect of the applicant's complaint under Article 3 (Art. 3), the Government point to the Commission's case law that the segregation of persons in detention for reasons of security or discipline is not per se a breach of Article 3 (Art. 3). The Government also point to the fact that the deceased was assessed as fit for detention in the segregation unit by one of the prison's medical officers, that whilst in the segregation unit he was seen each day by one the prison's medical officers, and that during the period he was in segregation there is no evidence of any deterioration in his condition, and that even if, which is not supported by the evidence, the circumstances of his detention aroused in him feelings of hopelessness, fear, anguish or inferiority, they were not such as to attain the minimum level of severity necessary to engage Article 3 (Art. 3). In respect of the applicant's complaint under Article 13 (Art. 13), the Government point to the fact that Mark Keenan could have raised issues relating to the circumstances of his detention under the prisons' Request and Complaints procedure, or through the mechanism of Judicial Review. The Government also point to the availability of actions in the tort of negligence, assault and misfeasance in the exercise of a public office, and that any action vested in the deceased at the time of death survives for the benefit of his estate under the Law Reform (Miscellaneous Provisions) Act 1934. The Government further point to the remedies available to the dependents of a deceased under the Fatal Accidents Act 1976. The Government submit, therefore, that English law provides effective remedies for the complaints made by the applicant in connection with her son's detention and death. The applicant complains under Article 2 (Art. 2) of the Convention that the respondent Government was under a positive obligation to take adequate and appropriate measures to secure effective protection of her son's life while he was detained as a prisoner known to be suffering from a mental illness. She submits that the prison authorities failed to comply with this obligation to safeguard her son's life. She submits, inter alia, that the prison authorities should have sought appropriate advice from a psychiatrist as to her son's mental condition before proceeding to impose disciplinary or segregation measures and that there should have been specific monitoring of his psychiatric condition by qualified persons while he was subject to segregation. Further, there were no effective procedural safeguards available in respect of the measures taken against her son. The applicant submits under Article 3 (Art. 3) that the measures taken against her son in the final days of his life constituted inhuman and degrading treatment and punishment having regard to his mental condition. She refers in particular to the decision to hold him in segregation in the punishment block, which involved incarceration for 23 hours each day. The applicant also invokes Article 13 (Art. 13), submitting that she did not have available any remedy which would effectively allow her to obtain redress in respect of the death of her son and the treatment which he suffered prior to his death. As established in counsel's opinion of 14 October 1994, she was unable to pursue any action in the courts, either under the Law Reform (Miscellaneous Provisions) Act 1934 or the Fatal Accidents Act 1976. The Commission has conducted a preliminary examination of the parties' arguments. It considers that the application raises complex and serious issues of fact and law under the Convention, the determination of which should depend upon an examination of the merits of the application as a whole. Consequently, the application cannot be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring it inadmissible have been established. For these reasons, the Commission, unanimously, DECLARES THIS APPLICATION ADMISSIBLE, without prejudging the merits of the case. M. DE SALVIA S. TRECHSEL Secretary President to the Commission to the Commission
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