AS TO THE ADMISSIBILITY OF
Application No. 18824/91
by Brian LOCKWOOD
against the United Kingdom
The European Commission of Human Rights sitting in private on
14 October 1992, the following members being present:
MM. J.A. FROWEIN, President
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
Mr. M. de SALVIA, Secretary to the First 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 15 April 1991 by
Brian Lockwood against the United Kingdom and registered on 19
September 1991 under file No. 18824/91;
Having regard to
- the report provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
3 July 1992 and the observations in reply submitted by the
applicant on 11 August 1992;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1940 and resident in
Leeds.
The facts as submitted by the parties may be summarised as
follows.
In December 1985 and April 1986, the applicant was convicted of
offences of burglary and robbery and sentenced to a total of ten and
a half years imprisonment.
In August 1986, the applicant was transferred to H.M.Prison
Frankland.
From November 1987 the applicant began to suffer health problems
and states that he reported sick frequently, often once or twice a
week. He alleges that his health deteriorated to such an extent that
concern was expressed by other prisoners and staff. He states that in
June 1988, his sisters received an anonymous telephone call from
someone in the prison telling them that the applicant was a very sick
man and that they should visit.
The prison medical records make no mention of any visit by the
applicant to the prison doctor between November 1987 when he was
referred to a hospital specialist regarding what was thought to be a
cyst on the eye and 4 June 1988, where the records indicate that the
applicant complained that his head felt as if it was swelling up and
of chest pains made worse by press-ups. An entry on 17 June 1988
records an upper respiratory tract infection for which medicine was
prescribed. On 22 June 1988, an inflamed pharynx is recorded and on 2
July 1988 medicine prescribed for hay-fever.
On 13 July 1988, the applicant is recorded as complaining of
dizziness and that there was some cyanosis. A possible diagnosis of
"portal hypertension " was made and blood tests were ordered and
carried out.
On 18 July 1988, the applicant was admitted to the prison
hospital overnight because of a dizzy spell. Later the next day , he
was re-admitted following a further dizzy spell and further blood tests
carried out.
On 2 August 1988, following the applicant's complaints of puffy
eyes and dilated veins on his chest, the consultant physician at
Dryburn hospital was contacted. An appointment was made for 11 August
1988, following which a venogram investigation showed impaired venous
drainage from both arms. Before further planned tests were carried out,
the applicant's condition deteriorated and he was admitted to hospital
on 9 September 1988.
The applicant was found to have a growth in his chest and he
underwent radiotherapy to reduce the obstruction to his superior vena
cava. A clear diagnosis of the nature of the tumour was never
established although a CT scan and a bronchoscopy with biopsy were
carried out. The radiotherapy appeared to alleviate his symptoms
considerably and the applicant was returned to prison on 22 September
1988.
Until his release on parole in December 1991, the medical records
indicate that the applicant was frequently seen as an outpatient at the
hospital and by the prison medical staff.
The applicant considered that conditions in one of the prison
workshops were the cause of his ill-health and that the prison medical
officer was negligent in the treatment which he gave, in particular,
the delay in having him admitted to hospital. He instituted proceedings
for negligence and obtained limited legal aid.
The applicant's solicitors obtained a medical report from another
doctor. The report mentioned the lack of medical records for the period
between November 1987 and July 1988, but gave the opinion that the
symptoms of the applicant should have given cause for alarm by May or
June 1988 and that the prison doctor was slow to seek another opinion.
He stated that the delay in diagnosis however probably did not affect
the final course of the disease, which had responded well to
radiotherapy. He considered that conditions in the workshop were not
responsible for his illness.
Counsel's opinion of 5 June 1990 stated that the medical evidence
did not indicate that the prison conditions were responsible for the
applicant's illness and that while there may have been a 3-4 month
delay in seeking treatment at the hospital, there was not enough
evidence to indicate that the delay had prejudiced the course of his
illness. Consequently, there was no reasonable prospect of obtaining
any damages. The applicant states that he received a copy of this
opinion on 6 December 1990. The legal aid certificate was discharged
on 3 April 1991 in light of this opinion.
COMPLAINTS
The applicant complains that the neglect of the prison medical
officer violated his rights under Articles 2 and 3 of the Convention.
He refers in particular to his psychological suffering and that he was
in fear of his life as a result of the lack of proper medical
treatment.
He complains that he has been denied a fair hearing contrary to
Article 6 of the Convention and that he has no effective remedy for his
complaints contrary to Article 13 of the Convention.
He further complains that he has suffered discrimination contrary
to Article 14 of the Convention since as a prisoner he has to accept
sub-standard medical treatment.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 15 April 1992 and registered
on 19 September 1991.
On 4 April 1992, the Commission decided to communicate the
complaints under Article 3 of the Convention to the respondent
Government and to ask for written observations on the admissibility and
merits.
The Government's observations were submitted on 3 July 1992
after one extension in the time-limit and the applicant's observations
in reply were submitted on 11 August 1992.
THE LAW
1. The applicant complains that his life was placed in jeopardy as
a result of negligent medical treatment. He invokes Article 2
(Art. 2) of the Convention.
The Commission has examined the applicant's complaint as it has
been submitted by him. The Commission finds however that this complaint
has not been substantiated and that it does not disclose any appearance
of a violation of Article 2 (Art. 2) of the Convention.
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.
2. The applicant complains of a violation of Article 3 (Art. 3) of
the Convention in that he suffered prolonged mental anguish as a result
of the inadequate medical care.
Article 3 (Art. 3) of the Convention provides:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The case-law of the Convention organs establishes that ill-
treatment must attain a minimum level of severity if it is to fall
within the scope of Article 3 (Art. 3) of the Convention. Further, the
Court has held that the suffering occasioned must attain a certain
level before treatment can be classified as inhuman. The assessment
of that minimum is relative and depends on all the circumstances of the
case, such as the duration of the treatment and its physical or mental
effects (see e.g. Eur. Court H.R., Ireland v. the United Kingdom,
judgment of 18 January 1978, Series A no. 25, p. 65, para. 162).
The Commission recalls that the applicant complains in the
present case of the mental suffering occasioned by the lack of proper
medical treatment which he received in prison. It appears however from
the medical opinion obtained by his solicitors that the facts of the
case established at the most that the prison medical officer had
delayed four months before seeking a second opinion and that probably
this delay did not alter the final course of the disease. Counsel's
opinion concluded in light of this that there was no evidence that the
applicant had suffered such prejudice by that delay as would attract
an award of damages.
The Commission notes that the treatment complained of is in
effect a lack of proper care. The distress and worry resulting to the
applicant was, the Commission accepts, not negligible. It recalls
however that the prison medical records indicate that from June 1988
onwards the applicant was receiving treatment and that steps were taken
to investigate his condition through a number of tests and eventual
reference to a hospital consultant. The failure of the prison medical
service over a period of at most four months either to diagnose the
applicant's problem correctly or to seek a second opinion is not
conduct of such a nature or degree to render the resulting treatment
of the applicant either inhuman or degrading within the meaning of
Article 3 (Art. 3) of the Convention.
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant complains that he did not receive a fair hearing
contrary to Article 6 para. 1 (Art. 6-1) of the Convention. This
provision provides, in its first sentence:
"In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair
and public hearing within a reasonable time by an independent and
impartial tribunal established by law. "
The Commission recalls that the applicant has been unable to
pursue the proceedings for negligence since his legal aid was
withdrawn. The case-law of the Court has established that Article 6
para. 1 (Art. 6-1) guarantees an effective right of access to court
(see e.g., Eur. Court H.R., Airey judgment of 9 October 1979, Series
A no. 32).
There is however no obligation on the State to provide free legal
aid for every dispute relating to a "civil right". The constant case-
law of the Commission holds that where an applicant is refused legal
aid on the basis that his claim lacks reasonable prospects of success,
this would not constitute a denial of access to court unless it could
be shown that the decision to refuse legal aid was arbitrary (see e.g.,
No. 8158/78, Dec. 10.7.80, D.R. 21 p. 95). The Commission recalls that
in the present case the applicant's legal aid was withdrawn following
his counsel's opinion that he had no reasonable prospects of obtaining
any damages.
The Commission concludes therefore that the applicant's complaint
fails to disclose a violation of Article 6 para. 1 (Art. 6-1) of the
Convention.
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
4. The applicant also complains of a violation of Article 14
(Art. 14) of the Convention in conjunction with Article 3 (Art. 3) in
that prisoners receive less favourable medical treatment than other
people.
Article 14 (Art. 14) of the Convention provides :
"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 recalls that not every difference in treatment is
contrary to Article 14 (Art. 14) of the Convention. In particular,
Article 14 (Art. 14) safeguards individuals placed in similar
positions from any discrimination in the enjoyment of the rights and
freedoms set out in the Convention and Protocols (see e.g. Eur. Court
H.R., Marckx judgment of 13 June 1979, Series A no. 31, and Van Der
Mussele judgment of
23 November 1983, Series A no. 70).
The Commission finds however that the position of prisoners and
persons outside prison cannot be considered as analogous for the
purposes of Article 14 (Art. 14) of the Convention. Prisoners, who are
detained, inevitably suffer a lack of choice or freedom as to the
medical advice to which they have access. The applicant's situation
therefore is not comparable to that of a person who is not detained.
Consequently, his complaints fail to disclose any appearance of a
violation of Article 14 (Art. 14) of the Convention.
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
5. The applicant also invokes Article 13 (Art. 13) of the
Convention, which provides that :
"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."
Even assuming that in the present case an action for negligence
did not provide an effective remedy for the applicant's complaint, 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 H.R.,
Boyle and Rice judgment of 27 April 1988, Series A no. 131, p.23, para.
52).
The Commission finds that the applicant cannot be said, in light
of its findings above to have an "arguable claim" of a violation of his
Convention rights.
It follows that this complaint must be rejected as 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.
Secretary to the First Chamber President of the First Chamber
(M. de SALVIA) (J. A. FROWEIN)
Full & Egal Universal Law Academy