AS TO THE ADMISSIBILITY OF
Application No. 23412/94
by the TAYLOR family, the CRAMPTON family, the
GIBSON family and the KING family
against the United Kingdom
The European Commission of Human Rights sitting in private on
30 August 1994, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to the application introduced on 7 January 1994 by
the Taylor family, the Crampton family, the Gibson family and the King
family against the United Kingdom registered on 7 February 1994 under
file No. 23412/94.
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 applicants, British citizens, are represented before the
Commission by Ms. Françoise Hampson, a senior law lecturer.
The applicants
The first and second applicants were born in 1966 and are
resident in Grantham. They are the parents of Liam Taylor who was born
in 1990 and died on 23 February 1991.
The third applicant, Paul Crampton, was born in 1985. He lives
in Lincoln with his parents, the fourth and fifth applicants, who were
born in 1958 and 1955 respectively.
The sixth applicant, Bradley Gibson, was born in 1985. He lives
in Grantham with his parents, the seventh and eighth applicants, who
were born in 1955 and 1956 respectively.
The ninth applicant, Christopher King, was born in 1991. He lives
in Bally with his parents, the ten and eleventh applicants, who were
born in 1965 and 1963 respectively.
The particular circumstances of the case
The facts of the present case, as submitted by the applicants and
as may be deduced from the documents, may be summarised as follows.
On 5 December 1990, Beverley Allitt who was completing her
training as state enrolled nurse (SEN) was interviewed by Grantham
hospital which was recruiting for adult wards. All the trainees who
were interested in a post were accepted except for Allitt.
Since she had taken considerable sick leave during her training
period, Allitt was required to work on wards for a further 10 weeks
after completing her written examinations. She asked to work on Ward
Four, the children's ward and the sister of the ward, Sister B., and
Allitt's manager agreed. Allitt worked on Ward Four for ten weeks from
December 1990.
Allitt applied for but was refused a place on a training course
in children's medicine at another hospital. Ward Four was seeking to
recruit a Registered Sick Children's nurse (RSCN) but no-one replied
to the advertisement. Since they were short of staff, they interviewed
Allitt for the post with some reluctance, given her status as a newly
qualified and inexperienced SEN. On 15 February 1991, Allitt was
appointed to work on Ward Four on a short contract due to expire in
August 1991.
Ward Four was also short of doctors. There were two consultants
but no registrar. The junior doctors who were available had limited
experience in paediatrics.
The Ward procedures were irregular and complaints had been made
prior to the incidents which began on 21 February 1991. When on
14 February 1991, Allitt reported that the key to the ward refrigerator
(in which drugs such as insulin were kept) was lost no Untoward
Incident Report was filed. Though the lock on the refrigerator was
replaced, it was not realised that the lost key could open all the
other refrigerators in the hospital. The official monitoring procedure
for the use of the insulin was later found by the police to be
inadequate in that it was not possible to match the record of the
amount of insulin supplied to the ward with the record of insulin on
the ward. Staff sometimes left the drug cupboard unlocked in the
treatment room. There was no defibrillator (an item of emergency
resuscitation equipment) on the ward.
On 21 February 1991, Liam Taylor (the son of the first and second
applicants) who was seven weeks old was admitted to Ward Four diagnosed
as suffering from bronchiolitis. On 23 February 1991 he collapsed
suddenly and required emergency resuscitation. He had stopped breathing
for an estimated hour and a quarter. Though his heart had started
beating again and he was breathing on a ventilator, he showed no other
signs of life. He began to suffer severe convulsions which the
consultant judged as indicating that he had suffered severe brain
damage. His parents (the first and second applicants) asked for Liam
to be taken off the ventilator and drugs and he died that afternoon.
The consultant's death certificate indicted the cause of death
as "probable septicaemia". The coroner rejected this and instructed the
pathologist at Grantham Hospital to conduct a post-mortem. The
consultant protested, insisting that if there was to be a post-mortem
it should be conducted by a paediatric pathologist. This was ignored.
The post-mortem disclosed that the heart was damaged in the left
ventricle, a symptom of heart attack extremely rare in children. The
pathologist found no cause for the attack and recorded that Liam had
died of a myocardial infarction. The consultant challenged this finding
and gave the opinion that there should be a second post-mortem. The
coroner however had signed the death certificate and was not prepared
to order a second post-mortem. The consultant contacted a paediatric
pathologist at another hospital who agreed to look at samples of
tissue. It appears that the hospital pathologist did not send off the
samples.
Subsequently when a photograph of Liam's heart was discovered by
the police and examined by the paediatric pathologist he confirmed the
cause of death as myocardial infarction but attributed it to
asphyxiation or poisoning.
On 5 March 1991, Timothy Hardwick, 11 years old and suffering
from severe cerebral palsy, died within three hours of admission to
Ward Four. The cause of death was recorded as "status epilepticus"
although there was no evidence that he had been suffering a fit prior
to his collapse.
On 10 March 1991, Kayley Desmond, 15 months old and admitted to
Ward Four with a chest infection and vomiting history, collapsed twice
and was transferred to Queen's Med., Nottingham. The X-rays of her
chest, which revealed traces of air which should not have been there,
were not sent on to a radiologist for examination.
On 20 March 1991, Paul Crampton (the third applicant), five
months old, was admitted to Ward Four for observation after his doctor
had diagnosed bronchiolitis. On 23 March 1991 shortly before he was due
to be released he suffered a hypoglycaemic attack while being fed. He
suffered two subsequent attacks. After his transfer to another hospital
Paul recovered without any medication.
A blood sample taken from Paul after the third attack on or about
28 March 1991 was sent for analysis but only arrived at the laboratory
on 4 April 1991. At the laboratory no-one was aware that there was any
urgency about the case. The test for insulin was conducted a week later
on 12 April 1991. The result of the test was that the insulin level was
so high that its level could not be measured accurately on the
equipment being used. The laboratory rang one of Ward Four's
consultants directly with the finding, which indicated an injection of
a large amount of insulin. The consultant raised his concern at this
finding with some of the other staff available at the time but told
them to do nothing but to keep watch.
Bradley Gibson (the sixth applicant), aged five and a half, was
admitted to Ward Four on 29 March 1991 suffering from pneumonia. His
parents (the seventh and eighth applicants) were called to the hospital
and told that his heart had stopped and that he had taken a long time
to resuscitate. He was transferred to Queen's Med., Nottingham. On
1 April 1991 he recovered consciousness and made a remarkably speedy
recovery. He suffered symptoms indicative of brain damage including
pains in his legs and loss of control of his bladder and bowels.
On 31 March 1991, Yik Hung Chan, two years old, collapsed twice
and was transferred to Queens Med.
On 4 April 1991, Becky Phillips, a baby of two-three months, was
discharged from Ward Four. She stopped breathing during the early hours
of the morning and died before arrival at the hospital. The cause of
death, unknown, was attributed to cot death syndrome. Her twin sister
admitted to Ward Four for observation collapsed on three occasions and
was transferred on 7 April 1991 to Nottingham City Hospital. Rib
fractures in her chest were not not remarked on the X-rays taken at the
time.
On 9 April 1991, Michael Davidson collapsed while being given an
injection on Ward Four and required emergency resuscitation. His
reaction was attributed to extreme anxiety at being injected.
On 13 April 1991, Christopher Peasgood, eight weeks old, stopped
breathing suddenly on two occasions while in Ward Four and was
transferred to Queens Med.
On 16 April 1991, Christopher King (the ninth applicant), aged
five weeks, who had been admitted to Ward Four with coughing and
vomiting, deteriorated with a sudden respiratory attack (the second
attack, although his parents, the tenth and eleventh applicants, had
not been informed of the first on 14 April). He had a third attack
before it was decided to transfer him to Queens Med., Nottingham, where
he recovered. The tenth applicant, his mother and a nurse in another
part of the hospital, approached one of the consultants with her
criticisms of the way Ward Four was run and the absence of emergency
equipment. He said that he would write to the manager who would contact
her. No such contact was ever made.
On 18 April 1991, Patrick Elstone, aged seven weeks, suffered two
collapses on Ward Four before being sent on to Queens Med., Nottingham.
On 19 April 1991, one of the consultants voiced his suspicion to
the hospital management that attacks were being made on children and
suggested covert surveillance. The hospital management appear to have
taken the attitude that no drastic step should be taken unless both
consultants on the ward could agree on the significance of the clinical
evidence.
On 22 April 1991, Claire Peck, 15 months old, who had entered
Ward Four with severe asthma, died following cardiac arrest. A blood
sample taken revealed a high concentration of potassium.
The doctors at Queens Med., Nottingham were baffled by the series
of emergency collapse cases passed on to them by Grantham Hospital and
informed the Professor in charge of paediatric services at Nottingham.
On 29 April 1991, the Professor rang one of the consultants at Ward
Four and said if they did not call in the police he would.
On 30 April 1991, the hospital manager contacted the Regional
Health Authority who told him to contact the police but to keep the
ward open.
Following the involvement of the police on 30 April 1991, Allitt
was arrested on 21 May 1991 and taken in for questioning.
On 2 July 1991, the police officer in charge of the investigation
was informed that the Director of Public Prosecutions (the DPP) was
taking over the case.
On 20 November 1991, Allitt was charged with the murder of four
children, nine attempted murders of children and nine counts of causing
grievous bodily harm to the same children. She was also charged with
attempting to murder two adults elsewhere and with causing them
grievous bodily harm with intent. At her trial, she did not give
evidence in her defence.
In May 1993, Allitt was convicted of the murder of four children,
including Liam Taylor, and of attempted murder of three children,
including Paul Crampton and Bradley Gibson, and of causing grievous
bodily harm to six children, including Christopher King. She was
sentenced to life imprisonment on every count. She was acquitted of the
charges against the adults.
The Regional Health Authority (RHA) had announced prior to the
trial that it was going to hold an internal inquiry the findings of
which would be made public. None of the parents were approached. The
hospital unions refused to talk to the inquiry and insisted that all
the jobs of staff on Ward Four be guaranteed. The inquiry appointed by
the RHA took evidence on 9, 10 and 12 January 1992. On 2 July 1992, a
final draft of the report was submitted to the RHA. On 17 September
1992 the RHA announced that it would not publish the report since they
had been advised that it would prejudice the trial of Allitt.
The RHA re-organised Ward Four passing its management to Queen's
Med., Nottingham. The two consultants were made redundant. The nurses
on the ward were made redundant but all obtained posts with the
exception of Sister B.
At the end of December 1992, the Grantham Advisory Team (GAT),
representing the hospital, produced a confidential report for the
Department of Health and another report a month later. They opposed a
public inquiry and proposed a second internal inquiry to start
disciplinary proceedings against some staff.
The parents of the children involved had been pressing for a
public inquiry in which witnesses could be compelled to attend and all
the causes of the tragedy could be investigated. The GAT and the RHA
opposed this idea on the basis that it was unnecessary, costly and
witnesses would be unwilling to give evidence.
On 7 May 1993, the Secretary of State announced that there would
only be a limited investigation to be conducted in private by a
chairman selected by the RHA with a panel selected by the RHA terms of
reference to be agreed by the RHA and without the power to compel
witnesses to give evidence or to require disclosure of documents.
The RHA, under pressure, agreed to accept Sir Cecil Clothier
Q.C., a former ombudsman, as chairman of the inquiry.
The parents sought but were refused legal aid for the purpose of
applying for judicial review of the decision not to hold a public
inquiry. Their appeal against this decision was turned down by the Area
Committee.
On 26 May 1993, an application for leave to apply for judicial
review was refused by the High Court. The Court of Appeal refused a
renewed application on 9 June 1993, its judgment being delivered on 9
July 1993.
The Allitt Inquiry
The terms of reference of the Allitt Inquiry included:
"1.1 To enquire into the circumstances leading to the deaths of
four children and injuries to nine others on Ward Four...
1.2 To consider the speed and appropriateness of the clinical
and managerial response within the hospital to the
incidents and to make recommendations;
1.3 To examine the appointment procedures and systems of
assessment and supervision... and to make recommendations
...
1.5 In the light of the occurrences on Ward Four...:-
1.5.1 to advise on the most efficient way for Health
Authorities to be informed of the serious
untoward incidents and to monitor their
handling;...
1.6 To consider such other matters relating to the said matters
as the public interest may require."
The Inquiry explained its approach as follows:
"We know that the tragic events on Ward Four were brought about
by the hand of Beverly Allitt. In order to inquire into those
events, we decided that we should address ourselves first to her
as an individual, considering her personality, health, training
and finally her entry to the nursing profession. Then we would
look at the surrounding circumstances in which she committed her
crimes, including the roles played by other persons not merely
at GKGH and the relevant policies and procedures..." In the section dealing with the role of the health authorities, the Inquiry described the scope of its investigation as follows: "By agreement with the Department of Health and the Trent Regional Health Authority, we therefore confine the review that follows to when and how South Lincolnshire Health Authority (SLHA) and Trent Regional Health Authority (Trent RHA) were informed of the events on Ward Four and what action they took after they had been informed." The Report of the Allitt Inquiry chaired by Sir Cecil Clothier was published at the beginning of 1994. The other members of the Inquiry were the Director of Quality, Manchester Children's Hopitals, and the Emeritus Professor of Clinical Neurology from Newcastle University. The Inquiry had heard 94 witnesses, including the medical and other staff of Grantham Hospital and Queen's Med., Nottingham, senior officers of the RHA and the parents of nine of the children. The Report referred to criticisms which had been voiced that the Inquiry had no power to compel the attendance of witnesses or the discovery of documents. It noted that every single witness whom they wanted to see attended, that every document which they wanted to see was produced and that if they had required further powers they would have asked for and been given them by the Secretary of State. The Report criticised, inter alia, the following shortcomings which contributed to or failed to contain the scope of the tragedy: - failure to take into account Allitt's health record in her employment and the sloppy managerial procedures relating to her appointment; - inadequate staffing levels on Ward Four in terms of number and experience, lack of leadership of the nurses or effective action when apprised of suspicions of foul play; - general laxity and indecisiveness of senior hospital management; - failure of the two consultants to grasp sooner the significance of the cascade of collapses with which they had to deal, in particular their failure to carry out an early and vigorous investigation in search of a common cause; - delay of two weeks between the first suspicion of foul play (ie. that an injection had been given to Paul Crampton) and the involvement of the police. The Report only commented indirectly on the allegations of failure properly to fund and staff Grantham Hospital. It made recommendations in light of its criticisms with a view to improving appointment procedures and health screening of nurses, post-mortem procedures, and the improvement of serious untoward incident reporting. It concluded: "The foregoing recommendations are aimed at the tightening of procedures to safeguard children in hospital. But no measures can afford complete protection against a determined miscreant. The main lesson from our Inquiry and our principal recommendation is that the Grantham disaster should serve to heighten awareness in all those caring for children of the possibility of malevolent intervention as a cause of unexplained clinical events." COMPLAINTS The applicants complain that they have been the victims of a violation of Article 2 of the Convention. They submit that the State, in relation to its positive obligation to protect the right to life where an unlawful killing or life-threatening attack takes place in an environment for which it responsible, must show that it has sought out the perpetrator and brought him/her to justice; that appropriate mechanisms exist for compensating the victims and that appropriate mechanisms exist to enable the State to determine whatever lessons need to be learnt to prevent or deter the repetition of such unlawful killings. This, they argue, requires in the circumstances of this case the provision of an independent, public inquiry. The applicants submit that the inquiry in this case was neither public nor had the power to compel witnesses or obtain discovery of documents and the terms of reference made no mention of the district health authority or the RHA and their management. Members of the panel were not independent of the RHA. The parents were unable to attend or be represented by a lawyer of their choosing and there was no examination or cross-examination of witnesses by counsel. The inquiry was accordingly ineffective and fatally flawed. The responsibility of the district health authority and the RHA for the events which happened was not examined, eg. the inadequate system of incident reporting; staff shortages and weak leadership. It also ignored the role played by the organisation of the National Health Service generally, ie. Grantham Hospital to qualify as a District General Hospital had to run a particular level of service and the exigencies of this meant that if Ward Four had been closed (as it should have been because it was understaffed to a critical level in the applicants' submission) the hospital would have lost two consultants and its status. The applicant parents complain both on behalf of their children and on their own behalf. They allege that they continue to be affected by the systemic shortcomings which risk other tragic events occurring in the future. THE LAW The applicants complain of a violation of Article 2 (Art. 2) of the Convention. This provides in its first paragraph as follows: "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." The applicants submit that the first sentence of this provision imports a procedural requirement that appropriate mechanisms be furnished to enable the State to determine whatever lessons need to be learnt to prevent or deter the repetition of the unlawful killings and life-threatening attacks which occurred in the present case. They submit that there was no sufficient inquiry made into the contributory factors of the tragedy involving the children. The applicant parents complain both on their own behalf and the behalf of their children alleging that the lack of such public investigation entails the risk of a recurrence of similar events. The Commission found in the case of McCann, Farrell and Savage v. the United Kingdom (No. 18984/91, Comm. Report 4.3.94, pending before the European Court of Human Rights) that Article 2 (Art. 2) may contain a procedural element. It stated, inter alia, as follows: "192. The Commission considers however that there is force in the applicants' submissions as to the necessity for an ex post facto review of the circumstances of a killing. It must often be the case where State agents have used lethal force against an individual that the factual circumstances and the motivation for the killing lie largely, if not wholly, within the knowledge of the State authorities and that the victim's families are unlikely to be in a position to assess whether the use of force was in fact justified. It is essential both for the relatives and for public confidence in the administration of justice and in the State's adherence to the principles of the rule of law that a killing by the State is subject to some form of open and objective oversight. 193. Having regard therefore to the necessity of ensuring the effective protection of the rights guaranteed under the Convention, which takes on added importance in the context of the right to life, the Commission finds that the obligation imposed on the State that everyone's right to life shall be "protected by law" may include a procedural aspect. This includes the minimum requirement of a mechanism whereby the circumstances of a deprivation of life by the agents of a State may receive public and independent scrutiny. The nature and degree of scrutiny which satisfies this minimum threshold must, in the Commission's view, depend on the circumstances of the particular case. There may be cases where the facts surrounding a deprivation of life are clear and undisputed and the subsequent inquisitorial examination may legitimately be reduced to a minimum formality. But equally, there may be other cases, where a victim dies in circumstances which are unclear, in which event the lack of any effective procedure to investigate the cause of the deprivation of life could by itself raise an issue under Article 2 (Art. 2) of the Convention." The Commission found however in that case that the provision of a public and independent inquest into the facts surrounding the shooting of the three terrorist suspects in Gibraltar by members of the armed forces was sufficient to satisfy the procedural requirements of Article 2 (Art. 2). The Commission notes first of all that in the present case, unlike the use of lethal force in the McCann case, the attacks on the children, including the applicant children, were prosecuted as criminal acts and that the nurse, Beverly Allitt, was convicted on counts of murder, attempted murder and grievous bodily harm, for which she received sentences of life imprisonment. The facts of the case were subject in the context of those criminal proceedings to investigation and public examination and cross-examination of the people involved (save Allitt herself who chose not to give evidence). The applicants allege however that the responsibility for events goes beyond the individual criminal responsibility of Allitt herself and that the case raises questions of responsibility for the appointment of an individual like Allitt, the procedural inadequacies for dealing with untoward incidents and emergencies, and the failure to respond promptly and effectively to the series of sudden collapses of children in one ward. This requires, they submit, a public and independent inquiry at which they would be provided with legal aid to be able to have witnesses cross-examined by counsel. The Allitt Inquiry however sat in private, its terms of reference were agreed with the RHA, whose responsibility was at stake, and it had no powers of compulsion. The Commission notes that the Inquiry which was held into the Allitt affair was presided over by Sir Cecil Clothier, an ex-Ombudsman, and it is satisfied that the Inquiry was effectively independent of the parties involved in the case. Further, while the Inquiry did not have powers to compel discovery or witnesses, it does not appear that the Inquiry was refused access to any document or that any witness refused to attend. The applicants have not referred to any item of evidence or testimony that was omitted from the investigation. Moreover, the terms of reference of the Inquiry covered aspects of operational responsibility of both the hospital and the RHA. While the Inquiry did not conduct itself in public, its findings and recommendations were made public. The Report identified a number of shortcomings which could have contributed to the ease with which and the length of time over which Allitt had conducted her attacks, and it made recommendations to avoid the same mistakes being repeated in future. To the extent that the applicants allege any other aspects of negligence on the part of the health authorities which contributed to the failure to protect the children in their care from injury, it would be possible for the applicants to institute proceedings alleging negligence and/or breach of statutory duty, in which it would be possible to seek discovery of documents and to have witnesses examined and cross-examined. The Commission acknowledges that neither the criminal proceedings nor the Inquiry addressed the wider issues relating to the organisation and funding of the National Health Service as a whole or the pressures which might have led to a ward being run subject to the shortcomings apparent on Ward Four. The procedural element contained in Article 2 (Art. 2) of the Convention however imposes the minimum requirement that where a State or its agents potentially bear responsibility for loss of life the events in question should be subject to an effective investigation or scrutiny which enables the facts to become known to the public, and in particular to the relatives of any victims. The Commission finds no indication that the facts of this case have not been sufficiently investigated and disclosed, or that there has been any failure to provide a mechanism whereby those with criminal or civil responsibility may be held answerable. The wider questions raised by the case are within the public domain and any doubts which may consequently arise as to policies adopted in the field of public health are, in the Commission's opinion, matters for public and political debate which fall outside the scope of Article 2 (Art. 2) and the other provisions of the Convention. The Commission concludes that the present application does not disclose any failure by the State to comply with the positive obligations, including any procedural requirements, imposed by Article 2 (Art. 2) of the Convention. It follows that it must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. For these reasons the Commission unanimously DECLARES THE APPLICATION INADMISSIBLE. Secretary to the Commission President of the Commission (H.C. KRÜGER) (C.A. NØRGAARD)
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