Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13250/87

by S.

against the United Kingdom

The European Commission of Human Rights sitting in private on

4 July 1988, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. J. RAYMOND, Deputy Secretary to the Commission

Having regard to Article 25 (Art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 2 March 1987 by

S. against the United Kingdom and registered on 29 September 1987

under file No. 13250/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a United Kingdom citizen born in 1922 and

resident in Liverpool. He is represented before the Commission by

Leslie Huckfield, a Member of the European Parliament.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant alleges that at the age of six a consultant

cardiologist erroneously diagnosed that he was suffering from a

serious heart disease. In October 1981 on admission to hospital for a

chest infection his heart was found to be in sound health. He claims

that his whole life has been ruined because of the original diagnosis

with a resultant loss of education, career prospects and quality of

life, whilst medical authorities continued to impose unnecessary

treatment and failed to detect the error over the years.

The applicant sought to sue the estate of the consultant, who

had died, and the Liverpool Area Health Authority. He was granted

legal aid in order to obtain the expert medical opinion of a

consultant cardiologist (three times) and junior counsel's opinion

(twice). The medical expert concluded that the original consultant's

diagnosis could not be deemed erroneous, given medical knowledge and

techniques around 1930, and that it was likely that the applicant had

been suffering from a congenital heart abnormality in his youth which

had corrected itself. He also considered that the hospital

authorities had not acted negligently in their treatment of the

applicant's health problems from time to time. Given the various

nervous symptoms which the applicant had displayed over the years, as

well as his own description of his medical history, there may have

been uncertainty on the part of the various hospital physicians

treating the applicant whether the applicant's symptoms were entirely

nervous or whether there was another underlying heart disease which

normal testing could not fully verify. This may have left them in

reasonable doubt and prevented them giving the applicant unreserved

reassurance about the health of his heart until 1981; in which case

they had not been negligent.

The applicant's solicitors apparently obtained access to

certain of the applicant's medical records held by his general

practitioner (GP), which were passed to the expert. From these

records it appears that the applicant had not always been regarded

by his GP as a man with heart disease.

Counsel rejected any possibility of litigation against the

original consultant's estate and doubted the prospects of success of

litigation against the Health Authority. He advised that the opinion

of senior counsel be sought as to whether, inter alia, the sheltered

life which the applicant had been obliged to lead because of his

purported heart condition could amount to a "personal injury" and

whether a non-personal injury claim would be time-barred by the rules

relating to the limitation of actions, unless it related to medical

treatment during the past six years. He also advised that further

medical evidence would be necessary before litigation could be

contemplated, without which it would be unlikely to succeed.

The applicant was offered the services of further medical

expertise which would have involved a review of all his medical

notes. These might have been made available to the newly appointed

consultant on a "doctor-to-doctor" basis, but the applicant could not

afford the £250 fee involved and no further legal aid was granted.

The local General Committee refused him further legal aid on

12 December 1984. After a change of solicitors and a fresh

application and appeal, legal aid was again refused by the Legal Aid

Area Committee on 31 July 1985 on the grounds that "there was not, nor

could be made available any evidence to support a claim against the

proposed defendant or any other specific defendant".

In about January or February 1986 the applicant's attempt to

litigate in person apparently failed.

Since then the applicant has approached, inter alia, a Member

of Parliament, the Lord Chancellor and the Health Service Ombudsman,

the latter concluding that he could not intervene to determine whether

a patient's treatment had been negligent and that he had no competence

to award compensation, these being matters for the civil courts.

The applicant claims that he cannot proceed further because he

cannot afford litigation costs and because he cannot have access to

his own medical records.

COMPLAINTS

In correspondence with the Commission the applicant stated

that his basic complaint is that the refusal of legal aid to enable

the courts to determine his case is a betrayal of legal aid

legislation. He has been burdened with a non-existent heart condition

for 54 years, which has ruined his life.

In his formal application to the Commission the applicant

invoked Article 10 (Art. 10) of the Convention (right to receive information)

on the grounds that he has allegedly been refused access to his medical

records, which access was necessary to discover whether the Health Authority

had acted negligently.

THE LAW

The applicant has complained that he has been refused legal

aid and access to certain medical records. He has invoked Article 10

(Art. 10) of the Convention which ensures freedom of expression, including

freedom to receive and impart information, subject to various limited

exceptions.

However, the Commission is not required to decide whether or

not the facts alleged by the applicant disclose any appearance of a

violation of this provision, as Article 26 (Art. 26) of the Convention provides

that the Commission "may only deal with the matter ... within a period of six

months from the date on which the final decision was taken".

In the present case it appears from the submissions of the

applicant that the proceedings in his case effectively ended on

31 July 1985 when the Legal Aid Area Committee refused him further

legal aid. His attempts to litigate in person in January and February

1986 apparently did not lead to any judicial decision on the merits of

his case. For the purposes of Article 26 (Art. 26) of the Convention the

Commission therefore concludes that the final decision in the

circumstances of the present case was that of the Legal Aid Area

Committee on 31 July 1985. However the application was submitted to

the Commission on 2 March 1987, that is more than six months after the

date of this decision. Furthermore, an examination of the case does

not disclose the existence of any special circumstances which might

have interrupted or suspended the running of that period.

It follows that the application has been introduced out of

time and must be rejected under Article 27 para. 3 (Art. 27-3) of the

Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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S. v. THE UNITED KINGDOM

S. v. THE UNITED KINGDOM

LEXI