Lexploria

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)

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LOCKWOOD v. THE UNITED KINGDOM

LOCKWOOD v. THE UNITED KINGDOM