PARTLY DISSENTING OPINION OF JUDGE Sir Nicolas BRATZA

To my regret, I am unable to agree with the majority of the Chamber that there has been a violation of Article 3 of the Convention in the present case.

The general principles governing the application of Article 3 are well summarised in the judgment of the Chamber. The case-law of the Court sets a high threshold, requiring that ill-treatment must attain a minimum level of severity if it is to fall within the scope of the Article. In the specific context of conditions of detention, the Court has held, inter alia , that while Article 3 cannot be interpreted as laying down a general obligation to release a detainee on health grounds, the Article obliges States to ensure that a person is detained in conditions which are compatible with respect for human dignity and that, given the practical demands of imprisonment, the health and well-being of a prisoner are adequately secured by, among other things, providing him or her with the requisite medical assistance (see, for example, Kudła v. Poland [GC], no. 30210/96, §§ 93-94, ECHR 2000-XI).

The central question raised in the present case is whether the material before the Court establishes to the required standard of proof that the treatment, including the medical treatment, of Judith McGlinchey by the prison authorities was in all the circumstances so deficient as to give rise to a breach of Article 3.

In deciding this question, I note at the outset two points which appear to me to be of some importance.

In the first place, it is not alleged, and it has not been found by the majority of the Chamber, that Judith McGlinchey’s state of health at the time of her conviction was such that she should never have been committed to, or detained, in prison. In this regard, the situation is materially different from that examined by the Court in its judgment in Price v. the United Kingdom (no. 33394/96, ECHR 2001-VII) in which a violation of Article 3 was found in a case involving an applicant who was a four-limb deficient thalidomide victim with numerous health problems and who was committed to prison without any steps being taken to ascertain whether there existed facilities adequate to cope with her severe level of disability. In the present case, by contrast, it has not been argued or found that the facilities in prison were not capable of treating a prisoner who was withdrawing from heroin addiction, with the additional complication of being an asthma sufferer.

Secondly, I note that several of the specific complaints of inhuman and degrading treatment made by the applicants have been rejected by the Chamber or found not to have been established. In particular, the Chamber has found unsubstantiated the complaint that relief for Judith McGlinchey’s heroin withdrawal was denied by the prison authorities as a punishment, the medical notes confirming that the prescribed drug was not administered on only one occasion on 8 December 1998, and this on the instructions of the doctor due to a drop in her blood pressure. The Chamber has similarly found unsubstantiated the allegation that asthma medicine was not administered, the nursing notes indicating that inhalers were provided when Judith McGlinchey was seen to be wheezing. As to the fact that, out of a total of twenty doses of antibiotic medicine for Judith McGlinchey’s arm over a five-day period, four were either not administered or not entered in the drugs record, the Chamber, while observing that in either event a regrettable lack of procedure was indicated, has found that there is nothing to show that this failure had any adverse effect on Judith McGlinchey’s condition or caused her any discomfort.

It is the complaint that not enough was done, or done quickly enough, to treat Judith McGlinchey for her heroin withdrawal symptoms, or to react to the serious deterioration in her general condition during her period of detention in the prison, that has been found by the majority to give rise to a breach of Article 3 of the Convention.

It is common ground that Judith McGlinchey was screened by a nurse on entry to the prison on 7 December 1998 and that, on the following day, she was seen by the prison doctor, Dr K., who set up a course of treatment for her various health problems. As appears from paragraphs 53 and 54 of the judgment, Judith McGlinchey’s condition from 7 to 12 December was subject to regular monitoring by the medical and nursing staff of the prison, who took steps to respond to her withdrawal symptoms. There is, in my view, no indication in the material before the Court that she was neglected or abandoned to cope without assistance.

While it is true, as emphasised by the majority of the Chamber, that during that period Judith McGlinchey continued to vomit, took little food and had lost weight, the evidence of the medical and nursing staff at the inquest was that her condition remained stable and that, although she vomited again in the evening of 11 December, there were signs of improvement in her condition. Both Sister N. and Dr K. gave evidence that Judith McGlinchey did not give a clinical impression of being very ill during this period and both noted that she was active and associating with others. Dr K., in particular, stated in evidence that, given her blood pressure, temperature and pulse and her general presentation, he did not consider that there was any need to admit her to an outside hospital.

Of greater concern is the fact that in the two following days – the weekend of 12 and 13 December – Dr K. was not present in the prison and Judith McGlinchey was not apparently seen by any doctor, even though a locum doctor came to the prison on the Saturday morning. While, according to the evidence at the inquest, Judith McGlinchey’s temperature, blood pressure and pulse were observed by the prison medical staff to be normal on 12 December, it was also recorded that she was continuing to vomit and that there had been a sharp drop in her weight to 40 kg – representing a 3 kg decrease since 9 December and, in all probability, a still more substantial

weight loss since her admission to prison.

However, I note that, despite the weight loss, the nursing staff found no cause for alarm and nothing which apparently required them to call out a doctor or arrange for her transfer to hospital in accordance with the practice established in the prison. It is recorded that, on 12 December, Judith McGlinchey had spent a better night. During 13 December, when she took a small dinner and did not vomit during the day, she was regarded by the nursing staff as improving, to the extent that it appears that it was not considered necessary to give her the prescribed anti-emetic medicine. Although she did vomit again twice that evening, no problems were observed during the night. Further, while the lack of any examination of Judith McGlinchey by a doctor, qualified, for example, to discern any problems of dehydration during a two-day period causes me some concern, I note that it was not established by the evidence at the inquest that Judith McGlinchey was in fact dehydrated when she arrived at hospital after her collapse on the morning of 14 December. Dr Tobin was unable to inject a central line due to her condition and, though there were in his view signs consistent with dehydration, he did not exclude that these could also have been the result of significant blood loss. More important still, to my mind, is the fact that none of the doctors who gave evidence at the inquest criticised Dr K. for failing to have Judith McGlinchey admitted earlier to hospital.

In these circumstances, I cannot find it established on the evidence before the Court that the medical treatment of Judith McGlinchey by the prison authorities was so deficient as to cause her distress or hardship or to amount to a violation of her rights under Article 3.

There were, as noted in the judgment, aspects of the arrangements in the prison or of the care given which could be criticised, as for example, the inaccuracy of the scales, the failure to provide or to record all the medication prescribed, and the lack of a doctor’s presence in the prison over most of the weekend. Moreover, had Judith McGlinchey been transferred to a hospital earlier, more expert care, and perhaps more palliative nursing, could have been made available. However, even judged with the wisdom of hindsight, I am unable to conclude that it has been shown that the prison authorities subjected Judith McGlinchey to inhuman or degrading treatment.

Accordingly, and not without some hesitation, I have voted against the finding of a violation of Article 3 of the Convention in the present case.

This conclusion does not however, mean that the applicants’ complaints fall outside the scope of protection of Article 13. The complaints were not declared inadmissible as manifestly ill-founded and necessitated an examination on the merits. I am satisfied that the various complaints of the applicants raised an arguable claim of a violation of the Convention for purposes of Article 13 and, for the reasons given in paragraphs 71 to 74 of the Chamber’s judgment, I consider that the applicants’ rights under that Article were violated.

Out of deference for the view of the majority of the Chamber that Judith McGlinchey’s rights under Article 3 were also violated, I have voted in favour of the full sums of compensation for non-pecuniary damage and of costs and expenses awarded in the judgment.