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 but right up to Regional Health Authority

     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)