Information Note on the Court’s case-law 18

May 2000

Powell v. the United Kingdom (dec.) - 45305/99

Decision 4.5.2000 [Section III]

Article 34

Victim

Relatives of deceased person having received compensation in settlement of civil claim: inadmissible

The applicants’ son died as a result of medical negligence resulting from a lack of co-ordination among  the various doctors treating his condition both as regards their diagnoses and their approach to his treatment. The applicants initiated proceedings before the Medical Services Committee, an internal professional disciplinary body, in order to establish the doctors’ responsibility for their son’s death an d to have a finding that there had been a cover-up of the exact circumstances surrounding his death. Only one of the accused doctors was found to have failed to comply with the terms of her service in treating the child. The applicants appealed to a higher health authority, arguing that the doctors had wilfully falsified their son’s medical records after his death in order to shield themselves from liability for their clinical errors. The applicants, believing their chances of obtaining justice were slim, d ecided to withdraw their appeal. A two-year police inquiry into the cover-up allegations was carried out. The conclusion reached was that there was insufficient evidence to bring charges against the doctors for attempting to pervert the course of justice. The applicants introduced civil proceedings against the doctors for negligence and post-death misconduct for having falsified their son’s medical reports. The Health Authority admitted liability on the basis of failure to diagnose and treat the child’s dis ease and agreed to pay the applicants compensation. The applicants accepted the payment and the action against the doctors in respect of the alleged medical negligence was consequently discontinued. The applicants maintained their claim for damages against the doctors in respect of the alleged cover-up and falsification of their son’s medical records. However, the High Court struck out the statement of claims as showing no cause of action. The applicants’ subsequent appeal was dismissed by the Court of Appe al, and their application for leave to appeal to the House of Lords was rejected.

Inadmissible under Article 2: Where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, matters such as an error of judgement on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient cannot be sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2. The procedural obligation in issue extends to the need for an effective independent system for establishing the cause of death of an individual under the care and responsibility of health professionals and any liability on the part of the latter. The examination of the applicants’ complaint was limited under this Article to the events leading to the death of their son. Given the applicants’ decision to withdraw their appeal to the h igher health authority, it could not be speculated on whether the appeal would have provided them with a full account of the doctors’ handling of their son’s condition. By withdrawing their appeal, they closed one of the options which may have uncovered th e extent of the lack of co-ordination among the doctors. Furthermore, the applicants did not pursue claims against the doctors themselves, which would have enabled them to have a full adversarial hearing, to subject the doctors to cross-examination under o ath and obtain disclosure of all documents relevant to their claim. Therefore, it was not open to them to complain that there was no effective investigation into their son’s death. Finally, where a relative of a deceased person accepts compensation in sett lement of a civil claim based on medical negligence he or she is in principle no longer able to claim to be a victim in respect of the circumstances surrounding the treatment administered to the deceased person or with regard to the investigation carried o ut into his or her death. Thus, the applicants could no longer claim to be victims: incompatible ratione personae.

Inadmissible under Article 8: Even assuming this provision applies to the circumstances and can be considered to denote a positive obligation on the authorities to make a full, frank and complete disclosure of the medical records of a deceased child to its parents, the applicants denied themselves the possibility of confirming their concerns about the integrity of the medical records by withdra wing their appeal and then by settling their civil action in negligence against the health authorities. A civil action in particular would have offered them a realistic chance of subjecting the doctors to cross-examination under oath and of requesting disc overy of all the original records compiled at the material time. They could thus no longer claim to be victims: incompatible ratione personae .

Inadmissible under Article 6 § 1: The applicants contended before the domestic courts that they had a right to co mpensation on account of the damage they personally had suffered as a result of the alleged cover-up by the doctors. However, the statement of claims was struck out as not giving rise to a cause of action, this decision being confirmed on appeal. The Court of Appeal found that the applicants had not established that they were in a relation of proximity with the doctors or that the harm which they had sustained was reasonably foreseeable. Therefore, no action in negligence could lie against the doctors under domestic law. The applicants could not invoke an arguable right for the purposes of the applicability of Article 6. The applicants’ submission that the outcome of the decision of the domestic courts was to bestow an immunity on doctors who deliberately mi slead the relatives of a deceased patient about the circumstances in which the latter died was untenable. Doctors and health authorities are liable to account for their acts and omissions in the context of civil actions in negligence and deliberate falsifi cation of documents is punishable under domestic law. Although the applicants were critical of the way the police investigations were handled, the evidence they adduced to support their claim was insufficient. The circumstances of the case were to be disti nguished from those which led the Court to find a violation of Article 6 in its Osman v. the United Kingdom judgment. In the instant case, there was no question of the domestic courts bestowing an immunity on the doctors for culpable behaviour: manifestly ill-founded.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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