Daniel & Anor v St George's Healthcare NHS Trust & Anor

James Best (“JB”) was a prisoner on remand at Her Majesty’s Prison (HMP) Wandsworth when he died from natural causes on 8 September 2011. He suffered a myocardial infarction (a heart attack), as a result of a ruptured plaque in the coronary artery, which caused cardiac arrest and death. He was only 37. He had no previous history of heart disease and it is likely that the plaque was ruptured by over-exertion in the prison gym.

The First Defendant (“St George’s”) is a National Health Service (“NHS”) Trust responsible for the provision of primary health care within HMP Wandsworth. Doctors and nurses employed by the First Defendant in the Department of Primary Care at HMP Wandsworth tried unsuccessfully to save JB’s life on the day of his death.

The Second Defendant (“the LAS”) is a NHS Trust responsible for the provision of ambulances within the London area. HMP Wandsworth is within its catchment area. On 8 September 2011, an emergency call for an ambulance for JB was made, but he was dead by the time the ambulance arrived.

The Claimants had a close relationship with JB which began when the First Claimant fostered JB for 3 years when he was a teenager, between 1988 and 1991. The Second Claimant is the First Claimant’s biological son, and described JB as his foster brother.

The Claimants have brought their claim for declarations and damages under the Human Rights Act 1998 (“HRA 1998”), alleging that the First and Second Defendants, as public authorities, acted in breach of Articles 2 and 3 of the European Convention on Human Rights (“ECHR”).

The Claimants allege that the servants and agents of St George’s acted contrary to their duties under section 6 of the HRA 1998 and Articles 2 and 3 ECHR in that Sister Gbolie failed to request an ambulance sufficiently promptly, either on arrival at JB’s cell or within 1 to 2 minutes of her arrival.

The Claimants allege that the servants and agents of the LAS acted contrary to their duties under section 6 of the HRA 1998 and Articles 2 and 3 ECHR in that there was unnecessary or unreasonable delay in the dispatch of an ambulance.

The issues in dispute are:

Article 2(1) ECHR provides:

“Everyone’s right to life shall be protected by law.”

In LCB v UK 27 EHRR 212, at [36], the ECtHR held that this establishes a positive obligation upon member states to take “appropriate steps to safeguard the lives of those within their jurisdiction”.

The positive obligation requires member states to put in place a legal and administrative framework to deter the commission of criminal offences against the person, backed up by law enforcement machinery, for the prevention and suppression and punishment of offences: Makaratzis v Greece 41 EHRR 1092, at 57.

In the context of medical care, Article 2 requires member states to put in place provision to ensure that health authorities adopt appropriate measures to protect patients’ lives. Member states are also required to set up an effective independent judicial system so that the cause of death of patients in the care of the medical profession, whether in the public or private sector, can be determined and those responsible made accountable. See Vo v France (2005) 40 EHRR 12, at [89], Calvelli & Ciglio v Italy, App. No. 32967/96, at [49].

In Powell v United Kingdom App. No 45305/99, the ECtHR held:

“… where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, it cannot accept that matters such as error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life. ”

Applying Powell, the Defendants submitted that, since there was no allegation of systemic failure in this case, the alleged errors by an individual nurse and Emergency Medical Dispatcher in the course of their duties were not capable of amounting to a violation of Article 2. In my view, that submission is too broad.

Similar questions were considered by the House of Lords in Savage v South Essex NHS Trust [2009] 1 AC 681. Lord Rodger, at [18] to [42], analysed the authorities which have held that, because the State has assumed responsibility for the welfare of detainees, and has control over them, there is a heightened duty on the State to protect their Article 2 rights. He explained that the discharge of this duty is likely to require (1) specific systems/procedures to cater for risks to life commonly arising in a prison or other place of detention; and (2) preventative operational measures in respect of an individual detainee where the authorities knew or ought to have known of a real and identified risk to his life.

Addressing the case of Powell, Baroness Hale said, at [91] and [97], that Article 2 would not be engaged by “ordinary medical negligence”, provided proper systems are in place. But “in some circumstances an operational duty to protect a particular individual is triggered” if the conditions established in Osman v United Kingdom 29 EHRR 245 were met, as for example, in Keenan v United Kingdom (2001) 33 EHRR 38.

In my view, when Lord Scott referred to patients in prison hospitals being in the same position as patients in a community hospital (at [10]) he was merely making the same point as Baroness Hale about cases of ordinary medical negligence, not challenging the view of Lord Rodger and Baroness Hale that an Osman operational duty could arise in, inter alia, the care of patients in detention, if certain conditions were met. In any event, Lord Scott was in a minority, since Lord Neuberger and Lord Walker agreed with Lord Rodger and Baroness Hale.

Moreover, the analysis of Lord Rodger and Baroness Hale on this issue was followed in Rabone v Pennine Care v NHS Trust (2012) 2 AC 72, per Lord Dyson at [19] to [34].

In Osman, the ECtHR held:

“115.…. Article 2 of the Convention may also imply in certain well defined circumstances a positive obligation on the authorities to take preventative operational measures to protect an individual whose life is at risk from the criminal acts of another individual….

116…. bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measure to prevent that risk from materialising…

In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The Court does not accept the Government’s view that the failure to perceive the risk to life in the circumstances known at the time or to take preventative measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life. Such a rigid standard must be considered to be incompatible with the requirement of Article 1 of the Convention and the obligations of Contracting States under that Article to secure the practical and effective protection of the rights and freedoms laid down therein, including Article 2. For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case.”

The application of the operational duty has developed incrementally. It may be broadly categorised as follows:

My analysis differs from Mr Bishop’s because I have listed detainees as a category, whereas he categorised the detention cases under “protection from attack” and “self harm/suicide”. I draw support for my analysis, in preference to his, from the judgment of Lord Dyson in Rabone v Pennine Care NHS Trust, at [15], where he stated:

“As the ECtHR said in para 115 of the Osman case, the operational duty exists in “certain well-defined circumstances”. The court has held that there is a duty on the state to take reasonable steps to protect prisoners from being harmed by others including fellow prisoners (Edwards v UK (2002) 35 EHRR 47) and from suicide (Keenan v United Kingdom (2001) 33 EHRR 38). The same duty exists to protect others who are detained by the state, such as immigrants who are kept in administrative detention (Slimani v France (2004) 43 EHRR 1068) and psychiatric patients who are detained in a public hospital (Savage v South Essex NHS Trust [2009] 1 AC 681) ….”

Furthermore, I consider that “the duty of prison authorities to take steps to prevent suicides derives from their wider duty to protect prisoners who are in a vulnerable position and for whom they are responsible”, per Lord Rodger in Savage at [29], rather than a duty which only arises where there is a suicide risk.

On a number of occasions, the ECtHR has held that a failure to provide timely and appropriate medical care to a detainee, could be a violation of Article 2, even in cases where the allegation was a failing on the part of individual police or prison officers, rather than a systemic failing. I cannot accept Mr Bishop’s submission that in those cases the ECtHR has applied a test which differs from the operational duty test set out in Osman. Whether or not Osman is expressly referred to, it seems to me that has been the test which has been applied, adapted, of course, to reflect the different factual context.

In Anguelova v Bulgaria (2004) 38 EHRR 31, a prisoner died in custody from a fractured skull suffered before his arrest. The police officers realised his condition was deteriorating but did not call an ambulance. The expert medical evidence showed that the delay in providing medical assistance had been fatal. The ECtHR held, at [125], that the police “delayed the provision of medical assistance … and that contributed in a decisive manner to the fatal outcome”.

In Tais v France App. 39922/03, a heavily inebriated detainee who was suffering from AIDS, died from injuries sustained when he fell against the sharp corner of a concrete bench in his cell. Between 1 am and 7.30 am no police officer had entered the cell, and the cries of the detainee were ignored. The expert evidence was that the injuries might not have been fatal if they had been diagnosed in time. The ECtHR held that the inertia of the police officers in the face of his physical and mental distress and the lack of effective police and medical supervision had constituted a violation of the Article 2 obligation to protect the life of a person in custody.

In Kats v Ukraine (2010) 51 EHRR 44, the death of a remand prisoner who was HIV positive and suffering from various chronic illnesses was indirectly caused by the inadequate medical treatment given to her by prison medical staff and prison authorities whilst in detention. The ECtHR found this was a violation of Article 2.

In Tarariyeva v Russia (2009) 48 EHRR 26, the ECtHR found a violation of Article 2 where a prisoner with a known condition of gastro-duodenitis was not given competent or adequate medical care and died. The Court, at [73] – [74], cited Keenan in support of the proposition that “persons in custody are in a vulnerable position and that the authorities are under a duty to protect them”, stating that the same principle applied in the public health sphere.

The cases of Tarariyeva and Kats illustrate the point that medical practitioners, both inside and outside a prison setting, are also subject to the Article 2 duty, as well as prison officers and police officers. Article 2 cases may turn on clinical judgments, such as in Rabone, where a psychiatrist’s decision to grant home leave lay at the heart of the claim. In R (Hall) v University College Hospital and the Secretary of State for Justice [2013] EWHC 198 (Admin), the Divisional Court accepted that Article 2 was engaged in a claim based upon allegations of lack of adequate care by prison medical staff and errors of clinical judgment in discharging a chronically sick and disabled prisoner from hospital back to the prison. On the evidence, the court found that the Claimant was not at imminent risk of death and that his treatment in prison had not reduced his life expectancy, so there was no violation of Article 2.

I also accept the Claimant’s submission that, since it is the state which is subject to the operational duty, it can apply not only to the detaining authority but also to other public authorities who from time to time may have responsibility for the detainee, such as a hospital or ambulance service.

The legal test on causation under the positive duty to protect life in Article 2 is summarised in Simor: Human Rights Practice at paragraph 2-026:

“Causation. It is not necessary to show that “but for” the State omission the ill-treatment would not have happened. A failure to take reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm is sufficient to engage the responsibility of the State. The claimant merely needs to establish that she has lost a substantial chance of avoiding the outcome. The fact that, judged in retrospect, the response could have made no difference is not relevant.”

The rationale behind these principles was helpfully set out by Lord Brown in Van Colle v Chief Constable of the Hertfordshire Police [2009] 1 AC 225, at [138]:

“As Lord Bingham pointed out in R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673, Convention claims have very different objectives from civil actions. Where civil actions are designed essentially to compensate claimants for their losses, Convention claims are intended rather to uphold minimum human rights standards and to vindicate those rights….It also seems to me to explain why a looser approach to causation is adopted under the Convention than in English tort law. Whereas the latter requires the claimant to establish on the balance of probabilities that, but for the claimant’s negligence, he would not have suffered his claimed loss … under the Convention it appears sufficient generally to establish merely that he lost a substantial chance of this.”

In Sarjantson v Chief Constable of Humberside Police [2014] QB 411, the Court of Appeal held that an alleged violation of Article 2 by a police failure to respond promptly to an emergency call should be judged according to what was known, or ought to have been known, by the police at the time. The fact that, with the benefit of hindsight, a prompt response by the police would still have been too late to prevent the attack on the victim, was not relevant to liability, though it might mean that there was no right to damages.

In a case involving a death from natural causes, it will usually be inherent in the exercise of assessing whether or not those concerned “failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk” to consider the cause of death and what could reasonably have been done to prevent it. Plainly, a prisoner may suffer a premature death from natural causes without any fault on the part of the prison or health authorities or their staff. No doubt that is why, in the medical treatment cases I have cited above, the court made express findings about the causal link between the failure to provide treatment and the death.

Article 3 ECHR provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

In order for there to be a violation of Article 3, the ill-treatment must attain a minimum level of severity. In a prison setting, that must be beyond the level of suffering which is inherent in detention. In principle, a failure to provide appropriate medical care to detainees may amount to a violation of Article 3: see e.g. Keenan v UK (supra).

In reaching my conclusions, I considered both oral and documentary evidence. On behalf of the Claimants, the following witnesses gave oral evidence: the First and Second Claimants; Prison Officer (PO) Paul Morris, based at HMP Wandsworth; the nursing expert Mr Colin Beacock; and the paramedic expert Professor Newton. On behalf of the Defendants, the following witnesses gave oral evidence: Sister Yema Gbolie, who was employed as a senior (Band 6) nurse by St George’s in the Department of Primary Care at HMP Wandsworth; Ms Lauren Hutson, Emergency Medical Dispatcher, employed by the LAS; Ms Susan Watkins, Ambulance Operations Manager for Control Services, employed by the LAS; the nursing expert Ms Lynne Hunt; and the paramedic expert Mr Julian Mark.

I also received hearsay evidence from the following witnesses:

In assessing the hearsay evidence, and deciding what weight to give to it, I had regard to the factors in section 4 of the Civil Evidence Act 1995 (CEA 1995), and took into account that this evidence had not been tested in cross-examination.

The Inquest took place on 14 September 2011 and 18 to 22 March 2013. It was recorded that JB died of natural causes at 1650 on 8 September 2011. The cause of death was recorded as acute left ventricular failure and coronary artery atheroma and thrombosis. The jury gave a narrative verdict.

The Inquest verdict was admitted in evidence, as part of the record of events, but both counsel agreed that the narrative verdict of the jury as to the circumstances of the death were not to be treated as evidence of the truth of their contents, applying the general principle that judgments in other proceedings are not admissible evidence: see Phipson on Evidence (18^th ed.) at 43-78; Hollington v F. Hewthorn & Co. Ltd [1943] KB 587. The evidence called at the Inquest differed from the evidence adduced in this trial, which could potentially make a material difference to the conclusions which this court could properly reach. Moreover, an inquest verdict is not intended to form the basis of a finding in a civil claim - section 10(2) of the Coroners and Justice Act 2009 provides that a determination at an inquest may not be framed in such a way as to appear to determine any question of civil liability. In light of the above, counsel for the Claimant did not pursue her initial submission that the findings of the Inquest ought to be given particular weight as they were part of the investigative procedure required under Article 2.

Both parties had notes of the proceedings (no transcript had been requested). The Defendants’ expert witnesses were provided with a set of notes, and Ms Hunt quoted from them in her report. It was agreed therefore that I ought to see the notes to which she expressly referred. Other than that, it was agreed that the notes should be disregarded.

Witness statements provided to the Inquest were referred to during the evidence with the leave of the court in accordance with the provisions of section 6 CEA 1995.

After giving careful consideration to the evidence, I made the following findings of fact.

JB was born on 11 December 1973 and so was 37 years of age when he died on 8 September 2011.

JB was admitted into HMP Wandsworth as a remand prisoner on 10 August 2011. A full-time primary care medical service was provided by the First Defendant within HMP Wandsworth, called the Department of Primary Care. I refer to members of this service as “the medical staff”. JB was medically assessed on arrival, and attended for treatment on several occasions. The medical records showed that JB had a history of alcohol and cannabis dependency; mental illness (including psychiatric in-patient treatment); asthma; Crohn’s disease and arthritis. His blood pressure was intermittently high whilst in prison. He said he was taking medication for hypertension but this was not confirmed by his G.P.’s notes. Dr Salim, the independent medical reviewer, concluded that his intermittent hypertension was unlikely to have contributed to the myocardial infarction and cardiac arrest. This finding was not challenged.

The Primary Care staff prescribed medication; referred him to mental health services; and kept him under observation for alcohol detoxification.

Whilst JB had a history of mental health problems, there was no evidence to suggest any link between his mental health and the events of 8 September 2011.

In February 2011, a letter was sent to Prison Governors, from the Ministry of Justice and the Department of Health, giving guidance as to how to minimise delays in obtaining emergency ambulance services for prisoners, by inter alia calling ambulances promptly wherever there were grave concerns about the immediate health of a prisoner.

I did not receive any documentary evidence about the procedures for dealing with medical emergencies in the prison at September 2011. The oral and written witness evidence described the practice and/or procedure within the prison for summoning urgent medical assistance to prisoners taken ill on the wing. Prison officers would radio or telephone the central control room. Few prison officers had a radio; one or two radios were allocated per wing. There were fixed land lines in offices on the wing but it appears that mobile telephones could not be used. Prison officers would use the term “Code 1” if it was the most serious type of emergency which appeared to be life-threatening e.g. if the prisoner was unconscious or unresponsive such as a hanging or very severe bleeding. All other urgent but less serious call-outs were designated “Code 2”, either expressly or by default, if not identified as a Code 1.

The control room was situated on the perimeter of the prison and co-ordinated security and communications across the prison, using CCTV, radio and telephone. It was staffed by a prison officer with specialist training in security, who acted as the Officer in Charge, and two “Operational Support Grades”, one of whom would be on the radio while the other maintained a manual log. The code-name for the control room radio was “Juliet Whiskey” (“JW”). A “Radio Log” was routinely kept. Exceptionally, an “Incident Log” would be created; for example, when a “Code 1” call was made. There was a highly accurate clock on the wall to assist in logging times. However, neither the calls nor the times of the calls were electronically recorded, which meant that they were susceptible to human error and inaccuracies. Not every call was logged; either because there was no time to do so, or because the call did not seem important enough to log. Because of staff shortages, there was only one radio operator on duty on 8 September 2011, along with the Officer in Charge on that day who was PO Morris. That meant that it was not physically possible for the two staff members in the control room to maintain a contemporaneous log, as well as handling radio and telephone calls, and all their other security duties. JB fell ill at one of the busiest times of the day when some 280 prisoners had to be moved within the prison for meal time and roll call. So the Radio Log and Incident Log produced in evidence were in fact written up after the events referred to. PO Morris described how he and the radio operator made contemporaneous notes of the time and content of the calls on pieces of paper, as best they could, whilst carrying out their various duties, and they then entered them into the logs subsequently. Because of the pressure of work on the staff in the control room, and on examining the times and entries shown, I do not accept that the times logged were 100% accurate, in the way that, for example, the electronic CAD log kept by the LAS was accurate to the minute and the second. Nor do I accept that the entries are a complete and accurate record of what was said in each conversation; it is obvious upon reading them, and in the light of the oral evidence given, that they are a summary only.

When the control room staff received a request for emergency medical assistance, they would radio the emergency response radio, code-named “Hotel 3”. The senior nurse on duty had responsibility for Hotel 3, which she kept with her and switched on at all times. Two other nurses (Hotel 2 and Hotel 7) also carried radios, and any emergency call from the control room to Hotel 3 would automatically be transmitted to them too. The doctors only had pagers, and so would not hear radio calls. Landlines were available in medical treatment rooms and offices used by all the medical staff.

Turning now to the events of 8 September 2011, JB attended the prison gym in the afternoon and undertook vigorous exercise. On his return to his cell on A wing, he felt unwell and his cell mate called for assistance. PO Karim attended and found JB standing by the window in his cell, holding his inhaler and a bottle of water. He said that he was having difficulty breathing and walking. PO Karim and JB walked out on to the landing which was better ventilated. PO Karim then went to the office and asked PO Kennedy to ring the control room to ask the emergency nurse to attend as JB was feeling unwell. He did not describe it as a “Code 1”.

PO Kennedy said he telephoned the control room and asked them to ask the emergency nurse on duty (“Hotel 3”) to call him back on his telephone extension. According to PO Kennedy, a minute or two later, Hotel 3 rang him back and he informed her that a prisoner was feeling unwell, and asked her if she would mind coming to see him. PO Kennedy confirmed to the PPO in interview that this was not an “emergency request” as he did not consider it was an emergency. He did not tell the control room that it was a “Code 1”.

PO Kennedy’s call to the control room, and the control room’s call to Hotel 3 asking her to telephone him, did not appear on any of the control room logs. This illustrates that the logs were not a complete record. PO Morris accepted in interview with the PPO, and in evidence to this court, that these calls were made. His explanation for their omission from the logs was that they were “not of an urgent nature” (interview with PPO).

Sister Gbolie was the nurse in charge that day, with responsibility for emergency calls via the radio Hotel 3. In her oral evidence, she said that she received a radio message from the control room asking her to telephone a prison officer and providing her with his telephone extension. When she telephoned the number, the prison officer told her that there was a prisoner on A wing who had just come from the exercise yard, he was asthmatic, he was having difficulty breathing and he was experiencing chest pain. Her oral evidence was inconsistent with her statements, in which she said that she was given this information by the control room radio operator, not the prison officer. Also, at the time she was preparing her statements, she was aware that the first call shown on the control room log was at 16.19 and so assumed that this must have the time of the first call to her. Despite this inconsistency, I am satisfied that the first call from the control room to Hotel 3 was in response to PO Kennedy’s call, and that Sister Gbolie then rang PO Kennedy. Although PO Kennedy does not give the same account of the conversation as Sister Gbolie, I have not had the benefit of hearing him questioned about it, whereas I have heard Sister Gbolie give credible oral evidence about the patient information she received, and her knowledge of chest pain was confirmed by Dr Fernandez. PO Morris did not know these details when he was discussing JB’s case with the LAS, and so the information about JB’s condition cannot have been relayed to Sister Gbolie by him. It is not in dispute that neither the control room nor PO Kennedy said it was a Code 1 incident at that stage.

When Sister Gbolie received the call she was on E wing collecting dressings for a patient. It took her approximately 2 minutes to reach the treatment room in B wing. In the treatment room, there were two emergency bags and she packed the smaller bag with the equipment she required. She felt she could not carry any more as the bulk and weight would have slowed her down, particularly on stairs. As she had been told he was asthmatic and had breathing difficulties, she took a nebuliser and oxygen, first checking that the oxygen tank was full. She spoke to another nurse and a doctor. According to her interview with the PPO, she was also asked to take another patient to A & E for an x-ray and had to explain why she could not do this. While she was in the treatment room, she received a second radio message from the control room asking what her estimated time of arrival was, and she told them she was on her way. In my view, it must have taken her at least 2 minutes, maybe longer, to assemble the equipment, pack the bag, speak to the other staff and take the call. I observe that it is commonplace for people to underestimate time.

In the meantime, PO Thompson had been called to the cell by JB’s cell mate, who feared he was having a heart attack, and he found JB on his knees struggling for breath and unable to speak. PO Thompson radioed to the control room, using code name Alpha 5, asking for Hotel 3 to attend Cell A3-36, and he stated that it was a Code 1 alert. PO Morris said that this was the call noted in the Radio Log as “16.20. From A5 to JW. H3 to attend A3-36 Code 1”. The same call was recorded in the Incident Log one minute earlier: “16.19. From A5 to JW. H3 Required. A3:36. Code 1”. The next entry in the Incident Log is: “16.20. JW to H3. Acknowledged.” There is no equivalent entry in the Radio Log. In view of the discrepancy between the Radio Log and the Incident Log, it is uncertain whether A5’s call was at 16.19 or 16.20. If it was at 16.20, then the next call to Hotel 3 would have been a little later than the time stated, perhaps closer to 16.21. It is difficult to match the logged calls to the accounts given by the witnesses, but it is likely that this call from the control room to H3 was the second call which Sister Gbolie received, by which time she was in the treatment room.

It was not disputed by the Defendants that PO Thompson called a Code 1 alert when he radioed the control room. The Code 1 alert was recorded in the control room logs, and was the reason why PO Morris set up an Incident Log. However, there was a conflict of evidence as to whether or not Sister Gbloie was informed by the control room that this was now a Code 1 alert. PO Morris said that he did inform her, and the word “Acknowledged” in the Incident Log meant that she acknowledged that she acknowledged both that she was required at cell A3:36 and that it was a code 1 alert. He made no reference to the earlier call or asking her estimated time of arrival.

I found Sister Gbolie to be consistent and convincing in her evidence that she was not informed that this was a Code 1 alert. Dr Fernandez’s evidence lent some support to Sister Gbolie’s evidence. She said in her statement that she was in the treatment room when Sister Gbolie arrived to collect the emergency bag and she overheard her say to another nurse that she was going to attend a patient who had chest pain. Dr Fernandez asked Sister Gbolie if she should accompany her and Sister Gbolie replied saying words to the effect of “no, it could be anything, but if I need you I will contact you”. Sister Gbolie explained to the PPO that she knew Dr Fernandez was about to go off duty and asked her to wait just in case she needed her. It seems to me that if it had been appreciated that this was a “Code 1” - potentially a life-threatening emergency – Sister Gbolie would have expected the doctor and nurse to provide assistance. Indeed, Sister Gbolie said it was the usual practice when a Code 1 alert was transmitted over the radio for other nurses who were available to go to assist Hotel 3. PO Morris disputed this, saying that usually Hotel 3 would call another nurse if required, as Sister Gbolie did in this case. However, I found Sister Gbolie’s evidence convincing and considered that she was likely to be better informed that PO Morris as to the usual practice among the nurses. At approximately 16.30, Dr Fernandez received a telephone call asking her to “assist with a patient who was having breathing difficulties” but she did not appreciate that this was the patient whom Sister Gbolie had referred to earlier. Dr Fernandez said that she did not recall being told that this was a Code 1.

Sister Gbloie also said that it was the practice to call an ambulance immediately when a Code 1 alert was called. PO Morris disagreed, saying that some Code 1 alerts turned out not to require an ambulance, either because the problem was resolved by the in-house medical team or because, on investigation, there was no serious medical problem. I concluded that PO Morris did accurately describe the practice which was operative as at September 2011 (there have been changes since that date). Since ambulances were always called from the control room, he would have had experience of the circumstances in which they were called.

I consider that when PO Morris took the call from Alpha 5, he knew that Hotel 3 had already been notified of the call-out to A wing. Once he realised it had become a Call 1 alert, he radioed her to make sure she was on her way and to get an estimated time of arrival. It is possible that, under pressure, he forgot to tell her it was now a Code 1 or alternatively did not consider it was necessary. Alternatively, it is possible that Sister Gbolie did not take in, or hear, the reference to Code 1 in the radio message from PO Morris, because she was busy getting ready and talking to other medical staff, and she treated this as just a “chasing” call; she knew she already had the details of this call-out. In those circumstances, I propose to consider the case on both those alternative bases.

Sister Gbolie estimated that it took her 1 to 1½ minutes to walk quickly from the treatment room on B wing to JB’s cell. Adding together the time periods I have identified so far (2 minutes, 2 minutes, 1 to 1½ minutes), she reached the cell about 5 to 5½ minutes after she finished speaking to PO Kennedy, but I do not know exactly when that was. On the balance of probabilities, she probably reached JB’s cell about 3 to 3½ minutes after acknowledging PO Morris’ call. Her acknowledgment was at approximately 16.20 or 16.21, according to the logs. If the logs were accurate, she would have arrived at some time between 16.23 and 16.24 and 30 seconds. I agree with the Defendants that it is impossible to state any of these times with certainty. I do not consider that she could have arrived at the cell any sooner, given the need to collect equipment, and the size and layout of the prison.

When Sister Gbolie arrived at JB’s cell, she found him crouched on the floor with his head down. He was breathing heavily and his Ventolin inhaler (for use in asthma attacks) was on the floor next to him. He was conscious, distressed, and perspiring. He had difficulty speaking but he responded to her queries with nods and signals, so she concluded that he was “responsive” (which is a technical term explained in the expert evidence) but not particularly so. She obtained a brief history from the prison officers present. PO Thompson’s account to the PPO was that the officers thought he had over-exerted himself in the gym and was having an asthma attack. In the light of the patient’s history and the fact that he had his inhaler beside him, Sister Gbolie’s initial view was that he was suffering from an asthma attack and she decided to give him oxygen. It took a moment or two to unseal the bag, connect the tube, turn on the oxygen and check it was working. With the assistance of the prison officers, JB was seated in a chair and the oxygen mask placed on his face. He was able to hold it in place. She fitted a pulse oximeter on his finger to check and monitor his oxygen saturation levels. She took his radial pulse, which was weak. She expected his condition to improve with the benefit of the oxygen but as she monitored his oximeter it became apparent that his oxygen saturation levels were not increasing and his condition was deteriorating. She tried to take his blood pressure and searched unsuccessfully for his brachial pulse.

Either before or after she attempted to take his blood pressure, Sister Gbolie radioed the control room for assistance. In the Incident Log, the exchange between Sister Gbolie and PO Morris was entered as a series of separate entries as follows:

“16.30.

From H3 to JW. H3 request H2 immediately.

16.30.

From JW to H2. H2 acknowledged on route.

16.31.

From JW to H3. JW asks, H3 did you require an ambulance.

16.31.

From H3 to JW. Yes -ambulance required.

16.32.

From JW to 999. Ambulance required….”

The entries for the same exchange in the Radio Log read:

“16.30

From H3 to JW. Requesting H2 immediately.

16.32

From H3 to JW. Requires ambulance. After we ask.”

It can be seen that the timings in the two logs are slightly different in that the Incident Log timed Hotel 3’s request for the ambulance at 16.31 whereas the Radio Log timed it at 16.32. As the LAS electronic logs confirm that PO Morris’s 999 call was put through to the ambulance service at 16.32, it seems that the conversation between Sister Gbolie and PO Morris must have occurred earlier than 16.32.

Having heard the oral evidence of PO Morris and Sister Gbolie, I consider that the log entries give a slightly misleading picture. There was only one radio call made by Sister Gbolie to the control room at this time. Sister Gbolie spoke to PO Morris and asked him to radio another nurse (Hotel 2) to assist her. PO Morris, appreciating that a call for another nurse meant that there was a serious emergency, immediately called across to his colleague to call Hotel 2 while he continued to speak to Sister Gbolie. Her account of the conversation was that, just as she was about to go on to tell him to call an ambulance, PO Morris interrupted her and asked if he should call an ambulance, to which she replied “yes”. I accepted Sister Gbolie’s evidence that, as an experienced nurse, observing her patient deteriorating despite the oxygen, she had already concluded that an ambulance ought to be called when she radioed the control room but she was pre-empted by PO Morris. Her account was plausible and consistent with my assessment of PO Morris as somewhat overbearing in his manner. It has only been necessary for me to examine this point because of the surprising way in which the logs were written up subsequently, seeking to make a point about the fact that the ambulance was called on the initiative of PO Morris, not Sister Gbolie. In my view, both Sister Gbolie and PO Morris appreciated that an ambulance was required, and acted upon that conclusion.

At the time she was speaking to the control room, Sister Gbolie also shouted to the prison officer in the cell with her to call Dr Fernandez from B wing. Dr Fernandez’s evidence was that she received the call at about 16.30 and, piecing together her time estimates, she would have arrived within about 1½ to 2 minutes. Her colleague Dr Reid also attended with her.

After Sister Gbolie had called for assistance, she noted JB’s breathing become more shallow, and laboured. He was still conscious. Then he became floppy and he could no longer hold the oxygen mask. Sister Gbolie could no longer feel his pulse. His skin was warm to the touch, and clammy. There was no evident cyanosis. He was incontinent of urine. Sister Gbolie considered that JB may have suffered a cardiac arrest and, with the assistance of the prison officers, she slid him on to a mattress and on to the floor so that he could be resuscitated.

Sister Gbolie went out into the corridor and saw her nurse colleague, Hotel 2, arriving with the automatic defibrillator. (She had previously told the PPO that she had the defibrillator with her, but on reflection, she believed that Hotel 2 brought it. I accepted that it was improbable that she left the cell to fetch an ECG since the only portable ECG in the prison was not working.) As prompted by the defibrillator, the nurses shocked JB and then applied CPR with 30 compressions applied to every 2 breaths, applied using the oxygen mask. After about two breaths, JB vomited. Dr Reid took over the compressions while Sister Gbolie maintained JB’s ventilation. When she tilted JB’s head to provide oxygen by the ambu-bag (a respiration device), she did not observe any blockage of the airway. Again prompted by the defibrillator, JB was shocked two further times, with compressions applied in between shocking. Other interventions (e.g. cannulation, adrenalin) were ruled out. There was no response, and Dr Reid certified JB as dead at 16.50, just after the arrival of the ambulance crew.

Later that day, the following entries were written into JB’s medical record:

“Yema Gbolie. 08 Sep 2011. 17.01.

History. Received Hotel 3 call about Mr Best complaining of chest pain while dealing with another patient, Call received at 16.19 hrs. Arrived on scene to find patient crouched on the floor and breathing heavily. Profuse perspiration noted. Administered oxygen immediately and patient assisted to chair with the help of the officers. Brachial pulse hard to find and difficulty in taking blood pressure. Oxygen saturation 90-94 with oxygen and radial pulse very faint. Within 5 minutes patient had become unresponsive to verbal cues and became limp and urinated. Assisted to floor and no pulse felt by this time. Breathing not felt. Defibrillator attached and patient shocked with no response. CPR started. Dr Reid and Dr Fernandez in attendance by this time and hotel 2 also. CPR continued two more shocks in between. Patient unresponsive to attempts. CPR continued till ambulance crew arrived at 16.50 hrs. CPR stopped.”

“Dr Reid. 08 Sept 2011. 19.04.

History: asked to attend 1630, pt unconscious and unresponsive. No pulse. No breath sounds. Pupils fixed and dilated. CPR commenced, defib showing asystole….Shocked x 3. No change in status. CPR continued. No response from patient. At 1650 – remained asystole. No pulse. No breath sounds. Pupils fixed and dilated, CPR ceased. Patient declared dead at 16.50 hrs.”

“Dr Fernandez 09 Sept 2011. 11.57”

History: Incident occurred on 8/9/11. Phone called received at 4.30 to assist a patient with breathing difficulties. Went to E wing to ask Dr Reid to go with me to see the patient. A nurse came into E wing room and tells someone choked. When we arrived the patient was on a mattress on the floor and Hotel 3 and an officer were assisting him. Two governors were at the door, there were also officers. His feet were at the door so I touched his feet and looked for pulse, he was pale, cold and cyanotic and had wet himself. They were going to shock him. He was with an oxygen mask and I asked them to take it away for the shocks. After two shocks Dr Reid stepped into the cell and started CPR (chest compressions) and Sister Gbolie was doing mouth to mouth ventilation. Dr Reid asked me to cannulate him and it was impossible as veins were collapsed. The ECG was on asystole. After the shocks CPR was continued but there was no response and he was certified dead by my colleague at 16.50 hrs.”

The Incident Log stated:

“16.50

Paramedics arrive

17.10

Prisoner confirmed “dead””

The time of death is incorrect; the medical evidence showed that he was certified dead at 16.50. The ambulance arrived at the prison at 16.46.18, but by the time the crew reached JB’s cell it was 16.50.

Returning now to the call for an ambulance, the Incident Log stated that the 999 call was made from the control room at 16.32. It was put through to the LAS by the 999 operator and Ms Lauren Hutson, an Emergency Medical Despatcher, took the call. It was logged as Computer Aided Despatch (CAD) number 2554 at 16.32.29.

The conversation between PO Morris and Ms Hutson was recorded. I heard the recording and read the transcript, which I accept as accurate. There was also a Call Log and a CAD log. I found Ms Hutson to be a reliable and careful witness and accepted her account of events, which was supported by the transcript and the logs.

PO Morris said he was calling from HMP Wandsworth; that a prisoner required an ambulance immediately, that he had no other details, a “medical paramedic” was with the prisoner, and required emergency assistance from the ambulance service.

Ms Hutson advised PO Morris that the more information LAS had, the faster an ambulance could attend.

PO Morris said he could not get to the staff with the prisoner and the only information he had was that the prisoner was male and had severe breathing difficulties. He did not know the prisoner’s name or age.

Ms Hutson recorded the address and direct telephone number onto the system and commenced to triage the call using the computerised Medical Priority Dispatch System (“MPDS”). Based on the only information available (male, severe breathing difficulty) Ms Hutson selected the appropriate MPDS protocol for “Breathing Problems” and entered the information provided by PO Morris.

As soon as Ms Hutson logged “difficulty in breathing” (which was at 16.33.10), a Fast Response Unit (“FRU”) SW46 was automatically despatched. This was not an ambulance but a vehicle staffed by a paramedic.

MPDS then guided Ms Hutson through the process of collecting the information she needed from PO Morris to assess the nature and gravity of JB’s condition. MPDS prompted Ms Hutson to ask the required “Case Entry” and “Key Questions”; PO Morris was unable to answer the majority of these. So Ms Hutson asked PO Morris the most important pieces of information required in the Breathing Problems protocol. This included: “is the patient awake?”, “can he breathe at all?”, “does he have difficulty speaking between breaths?”, “is he clammy?” and “is he changing colour?”.

PO Morris informed Ms Hutson that he could not find out the answers to these questions because the prisoner was in a cell on the wing and he was in the control room. Ms Hutson entered “unknown” for each section in the Breathing Protocol as PO Morris was not able to provide the information. He said he could only say that the prisoner was having severe breathing difficulties and he told her that “they’re all panicking coming over the radio and the nurse is screaming for an ambulance”.

Based on the information completed in the Protocol, and the responses Ms Hutson had selected, the call received an MPDS determinant of 6C1 – Abnormal Breathing and was assigned a category C3 priority. This was at 16.33.55. The response time for a category C3 was a telephone assessment within 20 minutes or an arrival on scene within 30 minutes, and so at 16.34.16, FRU SW46 was automatically cancelled so that it could be made available for higher priority calls.

At 16.35.50, ambulance Q308 was despatched but at 16.37.38 it was cancelled for a higher priority event.

At 16.39.21 ambulance Q407 was dispatched.

Ms Hutson sought advice from the Call Taking Manager (“CTM”), who was seated near her. That conversation does not appear on the transcript because Ms Hutson covered the microphone. Ms Hutson told her manager what PO Morris had said, including that there was a “medical paramedic” on the scene. At the request of her manager, she asked PO Morris if this person was an ambulance service paramedic. PO Morris replied “sorry I shouldn’t say she is a paramedic, they’re trained, they’re trained to paramedic standard that’s what I meant to say … they’re emergency nurses who work within the prison service … sorry I didn’t meant to misinform you…”

As the call was from Her Majesty’s Prisons Ms Hutson requested clarification of the prisoner’s category and reference number or other information. PO Morris was unable to provide this information and advised that he did not know who the prisoner was.

Ms Hutson again consulted the CTM, explaining the information she had and asked if the call could be upgraded to a higher priority (Red). The CTM did not consider it appropriate to upgrade the call to Red and advised that Ms Hutson should provide the C3 exit instructions and encouraged her to obtain further information from PO Morris if she could.

Ms Hutson obtained confirmation from PO Morris of the access details to the prison and that there would be someone to meet and escort the paramedics through the prison. Ms Hutson provided PO Morris with the reference number of the call “CAD 2554”.

As the call had been categorised C3 Ms Hutson advised PO Morris that, on the basis of the information he had given, an ambulance might not be immediately allocated. PO Morris asked what he needed to do to get an “emergency ambulance, I’ve got a nurse screaming on the radio”.

Ms Hutson again explained that she needed more information and that she needed to know whether the patient was breathing. PO Morris said “I haven’t got radio…” and “this is a massive prison … we are at one end and they’re at the other…”.

PO Morris was talking to other people in the background, he said “sorry ... I’ve got 5 people speaking to me”. Ms Hutson agreed to keep the call open but said they did not have enough information. Ms Hutson remained on the line and waited for him to respond. When PO Morris resumed speaking to her, Ms Hutson again explained the information that she needed, and identified for him the items of information which would triage the call higher. She said:

“We have other patients we know are definitely ... properly really ill. So she needs to tell us if he’s breathing, if he’s having difficulty speaking between breaths, is he changing colour, does he have asthma? So the more information she can give us, the quicker we can get an ambulance. The best thing to do would be to try and get somebody down there who can call us to near where they are.”

PO Morris replied: “We’re doing that now”.

PO Morris asked Ms Hutson to remain on the line while he tried to get the information, which took a minute or so.

PO Morris informed Ms Hutson that the prisoner had low blood pressure. Ms Hutson immediately entered this further information into the system. PO Morris told Ms Hutson that he would have more information in a couple of seconds. While PO Morris was waiting for the further information Ms Hutson again explained the information needed to assess the urgency of the call.

PO Morris then reacted loudly and swore in a way which sounded to Ms Hutson like he was reacting to a piece of information. PO Morris again told Ms Hutson that he could not give her any further information but that the prisoner was “gravely ill” and needed an emergency ambulance. PO Morris repeated the original information that the patient was having severe difficulty in breathing. PO Morris said “it sounds like this man is dying”. He reiterated that an ambulance was urgently needed.

Based on PO Morris’s level of distress and inability to provide information which would change the category of the call, Ms Hutson spoke to the CTM and requested that the CTM contact the sector desk to advise them of the situation and to see whether they could ensure that any vehicle allocated to the call would not be cancelled for a higher priority event. The CTM agreed and contacted the sector desk by telephone asking them not to cancel ambulance Q407, which had been despatched earlier, at 16.39.21. The instruction not to cancel this ambulance was logged at 16.41.37. Ms Hutson informed PO Morris an ambulance was on its way.

At 16.42.45, FRU SW52 was despatched.

There was further talking in the background between PO Morris and other people. PO Morris then said to Ms Hutson that he was trying to radio the prison officer who first called (PO Thompson). There was then further talking in the background and PO Morris then said to Ms Hutson that “he’s having a heart attack”. Ms Hutson repeated this information back to PO Morris to confirm that she had received this. Ms Hutson immediately entered the information onto the system as a new protocol. It was logged at 16.44.06. Ms Hutson was aware that the CTM was able to overhear her clarifying this information in order to update the sector desk without delay.

At 16.44.55, FRU SW46 was despatched.

Ms Hutson asked PO Morris whether there was a defibrillator available and she advised him that if there was a defibrillator in the prison it should be sent to the prisoner immediately. PO Morris then said that “they’ve shocked him twice”. From this information Ms Hutson realised that there was a defibrillator at the scene, and that the patient was now in cardiac arrest. PO Morris also confirmed that there was a doctor attending the patient. Ms Hutson updated the log to reflect this information.

Ms Hutson informed PO Morris that the call had been re-categorised as a “Red One” category call. Ms Hutson confirmed that someone should meet the vehicle at the prison entrance. The call log indicated that the call concluded at 16:45:16.

The ambulance Q407 arrived at HMP Wandsworth at 16.46.18. The ambulance crew reached JB’s cell at 16.50, at which time JB was certified dead by Dr Reid. The FRU vehicles arrived at 16.49.44 and 16.50.29.

In reaching my conclusions on Article 2, I remind myself that the test to be applied is whether the Defendants did “all that could reasonably be expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge” (Osman at [116]). In Rabone, Lord Dyson considered that an “immediate” risk was one which “present and continuing” (at [39]). He added, at [43]:

“The standard required for the performance of the operational duty is one of reasonableness. This brings in “consideration of the circumstances of the case, the ease or difficulty of taking precautions and the resources available”; per Lord Carswell In re Officer L [2007] 1 WLR 2135, para 21.

The ECtHR and the domestic courts have emphasised that the operational duty must not be interpreted in a way “which imposes an impossible or disproportionate burden on the authorities” (Osman at [116]).

The Claimants submitted that JB was especially vulnerable by reason of his mental and physical health. JB’s pre-existing physical and mental health conditions are summarised at paragraph 45 above. Dr Salim, in his independent clinical review, found that JB’s physical and psychological health needs (prior to 8 September) were appropriately assessed and managed, and this conclusion was not challenged by the Claimants.

In my view, JB’s mental health had no bearing on the events of 8 September, or the treatment which he ought to have received. As to his physical health, the only relevant condition was that he was asthmatic. The prison officers and Sister Gbolie were aware that he was asthmatic; hence the initial assessment that his breathing difficulties was caused by an asthmatic attack. Importantly, JB had no known history of cardiac disease and had no symptoms suggestive of coronary heart disease. Dr Salim considered it unlikely that his intermittent hypertension was a contributory cause to the myocardial infarction, and hence his death. This evidence was not challenged by the Claimants. As JB was only 37, apparently in reasonable health and fit enough to go to the gym, there was nothing to alert the prison officers and medical staff that he was at risk of a heart attack or cardiac arrest until he became ill on 8 September 2011.

On my analysis of the evidence, I have concluded that the time it took Sister Gbolie to reach JB’s cell was reasonable, bearing in mind the size and layout of the prison. She acted reasonably in going to the treatment room to collect equipment, and then in selecting the equipment which she was likely to need, and which she could carry relatively easily and quickly. At paragraph 61 above, I said that I did not consider that she could have arrived at the cell any sooner. Even if she received, and acted upon, a Code 1 alert from PO Morris at about 16.20, I still do not think she could or would have arrived at the cell any more quickly than she did. She was already on her way and picking up the equipment by the time she received the call from PO Morris.

Both nursing experts were of the view that it was reasonable for Sister Gbolie not to call for an ambulance until she had arrived at JB’s cell and assessed his condition, even on the assumption that she had been informed of the Code 1 alert. PO Morris said Code 1 alerts called by non-medically trained prison officers often turned out not to be serious, and that was why, in practice, they did not call an ambulance straightaway when a Code 1 alert was received. Instead they would normally wait for the Hotel 3 nurse to arrive and assess the prisoner. Ms Watkins confirmed that Code 1 alerts were not always serious, describing how the new scheme, under which an ambulance is automatically called and dispatched when a Code 1 alert is given, has resulted in a significant number of ambulance call-outs to prisons being stood down, because the Code 1 was a false alarm.

Both nursing experts were of the view that, upon arrival at JB’s cell, the reasonable professional response of a trained nurse was to assess JB’s condition before deciding whether to call for an ambulance. I accept that evidence. The difference between the experts was that Mr Beacock, for the Claimants, considered that, after an initial assessment lasting only 1 or 2 minutes, Sister Gbolie should have asked for an ambulance to be called, whereas Ms Hunt, for the First Defendant, considered that Sister Gbolie acted professionally and reasonably in first attempting to treat JB for an asthma attack, and only calling for an ambulance once he did not show the expected improvement, and instead deteriorated. As I explained in my findings of fact, it is not possible to ascertain the precise time at which Sister Gbolie arrived at JB’s cell. However, my estimate is that she arrived between 16.23 and 16.25, and she called for assistance from other medical staff and for an ambulance (on my findings) at 16.30. So the difference in view between Ms Hunt and Mr Beacock turns on a matter of a few minutes. Overall, I found Ms Hunt’s evidence to be more cogent and convincing than Mr Beacock’s evidence.

Sister Gbolie was a well-qualified and experienced senior nurse of some years’ experience. She was trained in basic life support, and “immediate” (Footnote: ¹) life support which was a more advanced form of training, enabling her to recognise the early signs of cardiac arrest. On seeing JB’s presenting symptoms and upon making enquiries of JB and the prison officers, I consider that it was reasonable for Sister Gbolie to make the initial working diagnosis of an asthma attack, based upon her knowledge that he was asthmatic, that he had been exerting himself in the gym, and that he had been using his inhaler. His symptoms were consistent with a severe asthma attack; he had no history of heart disease; and he was a relatively young man. The deterioration in his condition, from the point at which he was first observed by PO Karim, was not inconsistent with an asthma attack. It is only with the benefit of medical hindsight that we know that he was displaying the early symptoms of a myocardial infarction, triggered by his ruptured arterial plaque which would prove fatal. In my judgment, Sister Gbolie could not reasonably have diagnosed that initially, particularly when there was a more likely alternative diagnosis of asthma.

Mr Beacock’s view that Sister Gbolie ought to have diagnosed acute cardiac syndrome very soon after arrival at the cell was significantly undermined in cross-examination. He accepted that his view was based this upon the symptom of chest pain, as recorded in the brief notes in the medical records on the day, without sufficiently taking into account the evidence that she had been informed that he had breathing difficulties. He accepted that the presence of breathing difficulties made it more likely that JB was suffering from a severe asthma attack than acute cardiac syndrome. Chest pain could also be caused by a severe asthma attack. He had also not taken into account the fact that Sister Gbolie observed JB’s Ventolin inhaler on the floor, and that the prison officers had earlier seen him using the inhaler.

In my judgment, the treatment which Sister Gbolie gave to JB was appropriate and reasonable. The experts were agreed that Sister Gbolie was sufficiently qualified to treat JB’s asthma and that providing oxygen immediately was the appropriate step for someone with breathing difficulties, whether arising from asthma or some other cause. It is crucially important to bear in mind that initially JB was neither unconscious nor unresponsive (he was able to respond to verbal cues and hold the oxygen mask) so chest compressions and defibrillation would not have been appropriate, the resuscitation guidelines were not applicable, and his condition did not yet meet the “Code 1” criteria. Sister Gbolie was far better qualified to determine what was, or was not, a “Code 1” situation than a prison officer with no medical training. Even if Sister Gbolie’s initial diagnosis of an asthma attack had been correct, it is known that people can die from severe asthma attacks, and so, if JB had been left untreated, there would have been a “real and immediate risk to life”. But, in circumstances where JB was conscious and responsive, it was reasonable for Sister Gbolie to judge that she would be able to treat JB’s asthma attack effectively with the oxygen and nebuliser she had brought to the scene. In my judgment, the Claimants have not established, on the evidence, that Sister Gbolie ought to have assumed that his life was at risk from a possible asthma attack.

Both experts agreed that it was appropriate for Sister Gbolie to apply the “ABCDE approach” provided by the Resuscitation Council (UK). It states:

“The ABCDE approach

Underlying principles

The approach to all deteriorating or critically ill patients is the same. The underlying principles are:

1.

Use the Airway, Breathing, Circulation, Disability, Exposure (ABCDE) approach to assess and treat the patient.

2.

Do a complete initial assessment and re-assess regularly.

3.

Treat life-threatening problems before moving to the next part of assessment.

4.

Assess the effects of treatment.

5.

Recognise when you will need extra help. Call for appropriate help early.

6.

Use all members of the team. This enables interventions (e.g. assessment, attaching monitors, intravenous access), to be undertaken simultaneously.

7.

Communicate effectively - use the Situation, Background, Assessment, Recommendation (SBAR) or Reason, Story, Vital signs, Plan (RSVP) approach.

8.

The aim of the initial treatment is to keep the patient alive, and achieve some clinical improvement. This will buy time for further treatment and making a diagnosis.

9.

Remember – it can take a few minutes for treatments to work, so wait a short while before reassessing the patient after an intervention.

First steps

1.

Ensure personal safety. Wear apron and gloves as appropriate.

2.

First look at the patient in general to see if the patient appears unwell.

3.

If the patient is awake, ask “How are you?”. If the patient appears unconscious or has collapsed, shake him and ask “Are you alright?” If he responds normally he has a patent airway, is breathing and has brain perfusion. If he speaks only in short sentences, he may have breathing problems. Failure of the patient to respond is a clear marker of critical illness.

4.

This first rapid ‘Look, Listen and Feel” of the patient should take about 30 s and will often indicate a patient is critically ill and there is a need for urgent help. Ask a colleague to ensure appropriate help is coming.

5.

If the patient is unconscious, unresponsive, and is not breathing normally (occasional gasps are not normal) start CPR according to the resuscitation guidelines. If you are confident and trained to do so, feel for a pulse to determine if the patient has a respiratory arrest. If there are any doubts about the presence of a pulse start CPR.

6.

Monitor the vital signs early. Attach a pulse oximeter, ECG monitor and a non-invasive blood pressure monitor to all critically ill patients, as soon as possible.

7.

Insert an intravenous cannula as soon as possible. Take bloods for investigation when inserting the intravenous cannula.

Airway (A)

…

Breathing (B)

During the immediate assessment of breathing, it is vital to diagnose and treat immediately life-threatening conditions (e.g. acute severe asthma, pulmonary oedema, tension pneumo thorax, and massive haemothorax).

1.

Look, listen and feel for the general signs of respiratory distress: sweating, central cyanosis, use of the accessory muscles of respiration, and abdominal breathing.

2.

Count the respiratory rate. The normal rate is 12–20 breaths min^-1. A high (> 25 min^-1) or increasing respiratory rate is a marker of illness and a warning that the patient may deteriorate suddenly.

3.

Assess the depth of each breath, the pattern (rhythm) of respiration and whether chest expansion is equal on both sides.

4.

Note any chest deformity (this may increase the risk of deterioration in the ability to breathe normally); look for a raised jugular venous pulse (JVP) (e.g. in acute severe asthma or a tension pneumothorax); note the presence and patency of any chest drains; remember that abdominal distension may limit diaphragmatic movement, thereby worsening respiratory distress.

5.

Record the inspired oxygen concentration (%) and the SpO₂ reading of the pulse oximeter. The pulse oximeter does not detect hypercapnia. If the patient is receiving supplemental oxygen, the SpO₂ may be normal in the presence of a very high PaCO₂.

6.

Listen to the patient’s breath sounds a short distance from his face: rattling airway noises indicate the presence of airway secretions, usually caused by the inability of the patient to cough sufficiently or to take a deep breath. Stridor or wheeze suggests partial, but significant, airway obstruction.

7.

Percuss the chest: hyper-resonance may suggest a pneumothorax; dullness usually indicates consolidation or pleural fluid.

8.

Auscultate the chest: bronchial breathing indicates lung consolidation with patent airways; absent or reduced sounds suggest a pneumothorax or pleural fluid or lung consolidation caused by complete obstruction.

9.

Check the position of the trachea in the suprasternal notch: deviation to one side indicates mediastinal shift (e.g. pneumothorax, lung fibrosis or pleural fluid).

10.

Feel the chest wall to detect surgical emphysema or crepitus (suggesting a pneumothorax until proven otherwise).

11.

The specific treatment of respiratory disorders depends upon the cause. Nevertheless, all critically ill patients should be given oxygen. In a subgroup of patients with COPD, high concentrations of oxygen may depress breathing (i.e. they are at risk of hypercapnic respiratory failure - often referred to as type 2 respiratory failure). Nevertheless, these patients will also sustain end-organ damage or cardiac arrest if their blood oxygen tensions are allowed to decrease. In this group, aim for a lower than normal PaO₂ and oxygen saturation. Give oxygen via a Venturi 28% mask (4 L min^-1) or a 24% Venturi mask (4 L min^-1) initially and reassess. Aim for target SpO₂ range of 88–92% in most COPD patients, but evaluate the target for each patient based on the patient’s arterial blood gas measurements during previous exacerbations (if available). Some patients with chronic lung disease carry an oxygen alert card (that documents their target saturation) and their own appropriate Venturi mask.

12.

If the patient’s depth or rate of breathing is judged to be inadequate, or absent, use bag-mask or pocket mask ventilation to improve oxygenation and ventilation, whilst calling immediately for expert help. In cooperative patients who do not have airway obstruction consider the use of non-invasive ventilation (NIV). In patients with an acute exacerbation of COPD, the use of NIV is often helpful and prevents the need for tracheal intubation and invasive ventilation.

Circulation (C)

…

Disability (D)

…

Exposure (E)

…”

In my judgment, Sister Gbolie acted in accordance with the ABCDE approach, carrying out the assessment required for a critically ill patient with breathing difficulties. She followed the “look, listen, feel” advice, took his pulse, gave him oxygen, recorded his oxygen concentration with a pulse oximeter, took his blood pressure, monitored his condition. When giving his oral evidence, Mr Beacock accepted that it was appropriate for her to carry out these steps before calling for an ambulance. However, he considered that these steps ought to have been completed in 1 to 2 minutes. I considered that he was imposing an unrealistic standard. In my view, he under-estimated the time it would take to make brief preliminary enquiries of the prison officers and JB, take JB’s pulse, get JB off the floor on to a chair to open his airway, set up the oxygen tank and apply the mask and attach the oximeter. Ms Hunt considered that these steps would take at least 2 to 3 minutes. I also consider that Mr Beacock did not allow sufficient time for Sister Gbolie to monitor the effect of giving JB oxygen for another minute or two. Assuming he was suffering an asthmatic attack, the oxygen ought to have improved his symptoms and the oximeter should have shown an increase in oxygen saturation levels. The ABCDE guidance advises “assess the effects of treatment” and “it can take a few minutes for treatments to work, so wait a short while before reassessing the patient after an intervention”. As soon as it became apparent that JB’s oxygen saturation levels were not improving and his pulse was becoming more faint, Sister Gbolie called for assistance from other medical staff and for an ambulance. At around this point, or shortly afterwards, she knew and ought to have known that there was a real and immediate risk to life because he was not responding to oxygen and his condition appeared to be deteriorating.

Overall, I accept Sister Gbolie’s evidence that she was well aware of the need to act swiftly in carrying out her initial assessment, and that she did indeed act as swiftly as she reasonably could in a fast-moving and stressful situation. When JB did not respond to oxygen, she re-assessed her initial diagnosis and took prompt and appropriate action in calling for help. I consider that Sister Gbolie acted reasonably, and in accordance with nursing professional standards.

Ms Susan Watkins was one of the managers responsible for the call management and resource deployment of both 999 and Health Care Professional requests to the Emergency and Urgent Operation Centres.

Ms Watkins gave evidence about the systems which were in place at the date of this incident (there have been some changes since). LAS processed its calls using the Medical Priority Dispatch System (MPDS) and its associated computer based software ProQA. MPDS is a structured and systematic means of obtaining the critical information needed to ascertain the nature, gravity and urgency of the call to the ambulance service. Through a series of scripted questions, it guides the call handler through the process of collecting the vital information from a caller, performing a computerised triage. The call handler identifies the chief medical complaint, and allocates it to one of 37 protocols. This categorisation then prompts MPDS to ask a series of factual questions to obtain key information about the patient’s symptoms. Depending upon the answers, an assessment code, known as a “determinant code”, is provided comprising the protocol number, the determinant level, and the determinant descriptor (identified by a number) which provides further details. The six determinant levels are, in descending order of seriousness: Echo, Delta, Charlie, Bravo, Alpha, Omega.

Once the determinant code has been obtained, the LAS Computer Aided Dispatch (CAD) system links it to a Department of Health response priority, which has a target response time. These are:

“Category A.

Presenting conditions which may be immediately life threatening should receive an emergency response within 8 minutes, irrespective of location, in 75% of cases.

Presenting conditions which require a fully equipped ambulance vehicle to attend the incident must have an ambulance vehicle arrive within 19 minute of the request for transport being made in 95% of cases, unless the control room decides that an ambulance is not required.”

“Category C

Presenting conditions which are not immediately life threatening. Response times are determined locally, not nationally.”

LAS further sub-divided Category C into C1, C2, C3 and C4. All calls to the LAS were initially given a default category of C2, and then re-categorised once sufficient information was obtained to assess the appropriate category. In September 2011 the locally agreed response time for a C1 category call was 20 minutes. For a C2 or C3 category call it was 30 minutes.

All emergency and non-emergency calls were prioritised according to the following scale:

It was not in dispute between the paramedic experts (Professor Newton for the Claimants and Dr Mark for the Second Defendant) that it was both appropriate and necessary for LAS to use a system such as MPDS to assess and prioritise calls because ambulances and paramedics were a limited resource which had to be allocated according to need. Put simply, if call handlers (who were not clinicians) simply assessed and allocated resources on a call-by-call basis, ambulances and paramedics would inevitably be dispatched to less urgent cases and then they would not be available for dispatch to life-threatening cases.

It was agreed by the experts that MPDS was a well-established and highly-respected system for ambulance dispatch, used world-wide. It was intended to be used alongside national and local protocols which would determine what level of response should be allocated to the determinant code generated by MPDS, depending upon locally assessed priorities and available resources.

It was also agreed between the experts that there was deliberate inflexibility in the MPDS to ensure that non-clinical call handlers delivered consistent outcomes, allocating the available resources according to the priority need.

In my judgment, there was sufficient flexibility in the LAS system to adapt the computer-generated outcome if it appeared not to meet the priority need of a particular call. Call handlers were instructed and trained to consult their CTM if they had any concerns about the level of response generated by the system. CTMs had both the training and the power to vary the level of response, to meet the needs of an individual case. If required, they could discuss a problem in an individual case with clinicians. The level of response could be varied swiftly within the computerised system as soon as the call was terminated. While the call was ongoing, the computerised response could not be varied, but the CTM could immediately speak directly to the Call Sector staff (who controlled the ambulances and FRU’s) to request that an ambulance was dispatched sooner than the category response would otherwise indicate, and that it should not be diverted to a higher priority call. This was exactly what happened in this case.

Mid-way through the hearing, Professor Newton raised a new criticism which had not previously been part of his initial report, the joint report, or the Claimants’ pleaded case. It was that the LAS had disabled overrides available in the MPDS system. I altered the trial timetable to give Professor Newton time to contact MPDS manufacturers in the USA and obtain their documentation. Even with the benefit of this extra time, when he came to give evidence Professor Newton did not understand enough about MPDS to explain how the override system worked nor how it could have applied in this case. None of this gave me confidence in Professor Newton’s expertise. Fortunately it transpired that Dr Mark had considerable expertise in this area, gained from his work with the Yorkshire Ambulance Service and as Chair of the National Ambulance Services Medical Directors Group. He gave cogent and convincing evidence. He explained that there was an override in the MPDS system which enabled the operator to raise the determinant level by one level i.e. from Delta to Echo. However, an increase in the determinant level within MPDS would not necessarily alter the response time, which was dictated by the local protocols. It was more effective to have a system which altered the response time at local level. This was the system adopted by LAS.

Ms Watkins was also recalled to give evidence about MPDS overrides and she said that overrides had been reviewed by LAS’s Medical Director, to ensure that the MPDS was adapted and applied appropriately by LAS, to meet local priorities and needs. LAS concluded that the MPDS override was only required in traumatic injuries cases, as the MPDS questions did not adequately identify injuries where a gross deformity was apparent on visual inspection.

Although some other ambulance services operated a higher default category than C2, I did not consider that it was unreasonable for LAS, which has responsibility for the large densely-populated area of London, to opt for a lower default category, which would then be revised as a result of the MPDS assessment.

On the basis of the above evidence, I concluded that the LAS system was not unreasonably inflexible.

Ms Hutson and Ms Watkins both gave evidence describing how the call was processed on this occasion, which I have set out in my findings of fact. I found both Ms Hutson and Ms Watkins to be impressive witnesses. They appeared to be honest and scrupulously correct in their approach to their duties. They were intelligent, competent and had a very good understanding of how the LAS systems worked. Neither of them were clinicians, as this was not part of their job qualification. Ms Hutson had been in post for over 4 years at the time of this incident. She had initial training and ongoing training and updates.

Both joint experts agreed that Ms Hutson correctly applied the systems in place, by questioning the caller to achieve a determinant code, and then raising her concerns about the C2 response category with the CTM. Neither expert supported the view that Ms Hutson could reasonably be expected not to triage the call by applying MPDS and asking the prescribed questions. I agree. I also reject Ms Sjovoll’s suggestion in cross-examination that Ms Hutson could or should have invented fictitious data to enter into the MPDS system in an effort to generate a higher determinant code. This would have been unprofessional and could have resulted in her being disciplined.

In my view the call recording showed Ms Hutson being professional, helpful and patient with PO Morris, and she was flexible in trying several different ways to obtain at least the minimum information she needed to triage the call. I was puzzled as to why PO Morris did not realise that he ought to get more information about JB when making the call, and why initially he could not get even the most elementary information from those who were with JB when asked to do so by Ms Hutson. Obviously Sister Gbolie was busy treating JB, but there were prison officers standing by who had access to radios and telephones. In my view, the explanation for any unnecessary delay was the failure to provide LAS with the necessary information in time.

I accept that an LAS call handler taking a 999 call ought to appreciate from the outset of the call that it may concern a potential real and immediate risk to life. That is inherent in the nature of the emergency ambulance service. But not every 999 call to the ambulance service concerns an actual real and immediate risk to life. Indeed, Ms Watkins gave evidence about the high number of calls, both from the community and from prisons, which are not genuine emergencies at all. The point at which a call handler ought reasonably to appreciate that there is a real and immediate risk to life will depend upon the information provided by the caller and the triage by MPDS and the local protocols (which have now changed in respect of call-outs from prisons).

During this call, I consider that the point at which Ms Hutson ought to have known that there was a real and immediate risk to life was at paragraph 95 above, when PO Morris obtained information from the cell which led him to tell her that the prisoner was “gravely ill” and “it sounds like this man is dying”. He reiterated that an ambulance was urgently needed. I do not accept that the earlier information that he had “severe breathing difficulties” was a sufficient indicator. As Dr Mark explained, it is reasonable to expect a professional call handler to act on objective evidence. “Severe breathing difficulties” could cover a multitude of different conditions; some urgent and some not. A nurse (allegedly) screaming for an ambulance suggests an alarming lack of objective assessment and it did not provide any information which assisted Ms Hutson to triage the case. I do not accept that the fact that the call for an ambulance came from a prison where there were in-house medical staff meant that Ms Hutson ought to have assumed, without any evidence, that there was a risk to life. I note that PO Morris did not tell Ms Hutson that this was a “Code 1” alert or try to explain to her what a “Code 1” alert signified, in terms of the prisoner’s condition.

However, Ms Hutson rightly had regard to the distress and panic at the prison in reaching the conclusion this was a case which she needed to refer to her manager because the determinant code and response did not seem to be adequate to meet the need. This was the “human response” which the Claimants contended she should have brought to bear on the situation. In my findings of fact, at paragraph 96, I refer to the fact that it was because of PO Morris’s level of distress as well as his inability to provide information which would change the category of the call, Ms Hutson asked her CTM if she could ensure that the ambulance already on its way was not cancelled for a higher priority event. The CTM agreed and contacted the sector desk by telephone asking them not to cancel ambulance Q407, which had been dispatched earlier at 16.39.21. The instruction not to cancel this ambulance was logged at 16.41.37. Ms Hutson informed PO Morris an ambulance was on its way. Two FRU’s were also dispatched. The ambulance arrived at the prison at 16.46.18.

Taking into account all the evidence, I consider that LAS took all reasonable steps to respond to this call, and did so within a reasonable period of time.

At the material time, LAS did not have in place a special protocol for prison calls, other than in respect of security issues at Belmarsh. Calls from prisons were treated in the same way as calls from the community. It was not part of the Claimants’ pleaded case, nor Professor Newton’s evidence, that LAS ought to have operated a special procedure for prisons.

We heard from Dr Mark that the letter of February 2011 to Prison Governors advising them to set up protocols with NHS ambulance services, was directed at improving access to prisoners by ambulance crews, as it was taking too long for ambulances to be let into prisons and for crews to be taken to prisoners’ cells. Essentially, the heightened security was slowing down access. The access problem was also referred to in the joint report. The letter was directed at prison governors. Although NHS Trusts were copied into the letter, this just meant that it was referenced among a list of other documents in a bulletin – nothing was sent to them by the Commissioners.

In 2013, a Prison Service Instruction was issued, in response to deaths in custody, including this one, which set out a new framework for medical emergencies. It sets out the practice which prison staff should follow in the case of a medical emergency, including applying specific criteria to determine whether the emergency is a Blue (Code 1) or Red (Code 2), and guidance on when to call an ambulance. Following on from this, a protocol has been agreed with the LAS that calls from prisons will be given special treatment. LAS will now send out an ambulance to a prison if a call is designated “Code 1” by the prison staff, without triaging the case through the MPDS. In practice, this may mean that prison calls will be prioritised for resources ahead of community calls.

It was not part of the Claimants’ case against LAS that such a system ought to have been in operation at the time of JB’s death.

Finally, it was a reasonable allocation of resources for LAS to audit only a percentage of their calls for protocol compliance, rather than every call.

As I have stated above, the legal test of causation is whether there was a failure to take reasonably available measures which could have had a “real prospect of altering the outcome”. Put another way, the Claimants have to establish that JB “lost a substantial chance of avoiding the outcome”. The fact that, judged with the benefit of hindsight, a Convention-complaint response would not have prevented the outcome, is not relevant to liability.

Probably as a result of over-exertion in the gym, JB suffered a ruptured plaque in the coronary artery. This led to heart arrhythmia, myocardial infarction (a heart attack), cardiac arrest and death.

Dr Mark was asked whether, and if so to what extent, the earlier arrival of LAS paramedics and an ambulance would have altered the care which JB received, and the outcome. His evidence was as follows:

“No, survival from out of hospital cardiac arrest is limited and current evidence suggests that those who receive immediate bystander CPR, and early defibrillation where indicated, have the best chance of survival… any chance of successful treatment and recovery in 2011 would require Return of Spontaneous Circulation (ROSC), i.e. a successful resuscitation attempt, prior to conveying the patient to hospital for treatment. In this case Mr Best did receive immediate CPR and early defibrillation….

…. In her statement Sister Yema Gbolie confirms that an “automatic defibrillator” was applied to the patient which advised a “shock”, i.e. defibrillation. Automated External Defibrillators (AEDs) only advise and allow defibrillation of Ventricular Fibrillation (VF), a cardiac arrest rhythm which is amenable to defibrillation and is associated with a greater chance of survival than asystole….

It is clear that Mr Best had a cardiac arrest rhythm that was amenable to defibrillation up to the third shock being administered. If the ambulance crew had arrived earlier while the cardiac rhythm had been VF then, in accordance with JRCALC guidance, they would have advised that resuscitation attempts continue beyond 20 minutes. However, having already been defibrillated 3 times, it is highly unlikely that continued resuscitation attempts would have altered Mr Best’s outcome.

Had a paramedic with advanced life support skills and equipment arrived at the scene earlier, they may have been able to establish venous access and administer advanced life support drugs at an appropriate point in the resuscitation attempt. However, in an arrest amenable to defibrillation, administration of adrenaline or amiodarone is not advised until after the third defibrillator shock. In Dr Reid’s and Dr Fernandez’s statements, it is stated that Dr Fernandez attempted to cannulate but was unsuccessful. In any event, administration of adrenaline or amiodarone is unlikely to have altered Mr Best’s outcome.”

In the Joint Medicolegal Report, the Claimants’ and the Defendants’ paramedic experts were in agreement on this issue. The report stated:

Question

“7.

In what way or ways would LAS staff have improved Mr Best’s prospects of survival if they had arrived whilst prison medical staff (i.e. two nurses and two doctors) were already administering shocks with a defibrillator and providing CPR?”

Answer

We agree that paramedics are more highly skilled and experienced in resuscitation than the prison medical staff who comprise general practitioners and nurses. If ambulance service clinicians had arrived whilst CPR and the administration of shocks was ongoing then it is possible that elements of the resuscitation attempt would have been managed more effectively, in particular the management of Mr Best’s airway. However, the impact on Mr Best’s prospects of survival is likely to be minimal due to the well-documented exponential decrease in survival with time following cardiac arrest before successful defibrillation and his location in a secure prison environment which automatically induces a delay to paramedics gaining access to a patient….”

Question

“9.

If it is within your expertise, would any such additional advanced life support treatment have had a realistic prospect of altering the outcome for Mr Best? Please consider this question (a) as judged at the time, i.e. if LAS paramedics had arrived as defibrillation and CPR were already being applied and (b) as judged with hindsight. ”

Answer

“a)

We agree that, if the prison medical staff had recognised the severity of Mr Best’s condition prior to him suffering a cardiac arrest, and LAS paramedics had attended before his collapse, then it may have been possible to modify the subsequent course of his demise. However, once cardiac arrest was established, it is less likely that the presence of paramedics would have significantly altered the course of this episode unless [Return of Spontaneous Circulation] had been achieved follow defibrillation.

b)

With knowledge of the pathologist’s findings it is extremely unlikely that the provision of [Advanced Life Support] would have had any effect on the outcome for Mr Best….”

In the light of all the evidence, I do not consider that the Claimants have succeeded in establishing, on the balance of probabilities, that, even if Sister Gbolie had called an ambulance earlier, or LAS had dispatched an ambulance sooner, that there would have been a “real prospect of altering the outcome” or that JB “lost a substantial chance of avoiding the outcome”. JB received CPR and defibrillation from doctors and nurses at the scene as soon as reasonably possible after he lost consciousness and became unresponsive. This treatment offered was the best possible chance for his survival. If paramedics had arrived sooner, they would have administered the same treatment at the scene. The Claimants have not established that the presence of some vomit in his airway would have made any real difference.

The claim under Article 3 was unarguable, in my view. Sister Gbolie acted promptly, reasonably and professionally and did all she could to save JB’s life. There was no unreasonable delay in calling an ambulance. The LAS handled the emergency call in accordance with their procedures which were required to ensure that a limited resource of emergency vehicles and personnel were allocated fairly within the community according to priority need. In recognition of the particular circumstances and difficulties of this call, Ms Hutson and her CTM took active steps to ensure that an ambulance was despatched reasonably promptly. The call was connected at 16.32.29; the ambulance was dispatched at 16.39.21 and arrived at the prison at 16.46.18. It could well have arrived sooner if PO Morris had been able to provide more information about JB’s condition. In my judgment, the conduct of the Defendants could not amount to “inhuman or degrading treatment” for the purposes of Article 3.

By subsection 7(1) of the HRA 1998, a person may only bring a claim if he is a “victim of the unlawful act” complained of. Subsection (7) provides that “a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act”.

Article 34 of the Convention provides that the court may receive applications from any person claiming to be the victim of a violation of a Convention right, but does not define the term “victim”. The status of “victim” is an autonomous concept which the ECtHR interprets independently of domestic law rules on capacity and standing. In principle, therefore, the class of victims of an Article 2 violation might well extend beyond the class of persons entitled to seek financial compensation for a death under domestic law. Although the Defendants relied upon the observations of Lord Scott in Savage v South Essex NHS Trust [2009] 1 AC 681, at 690G, where he doubted whether the class of victims could be so extended, Lord Dyson described those observations as incorrect in Rabone v Pennine Care NHS Trust [2012] 2 AC 72, at [48], and I respectfully agree.

The general rule is that a victim must show that he is affected in some way by the matter complained of. It is not necessary to show damage - this is primarily relevant to the assessment of just satisfaction under Article 41.

The “Practical Guide on Admissibility Criteria” (2015) 60 E.H.R.R. SE8 issued by the ECtHR, provides a useful summary of principles which have emerged from the case law. It is, of course, merely guidance.

“2.

Categories of petitioners

“(a)

Physical persons”

10.

Applications can be brought only by living persons or on their behalf; a deceased person cannot lodge an application (Aizpurua Ortiz and Others v Spain, § 30; Dvoracek and Dvorackova v Slovakia § 41), even through a representative (Kaya and Polat v Turkey (dec.); Ciobanu v Romania (dec.)).”

…..

“3.

Victim status

(a)

Notion of “victim”

“15.

The word “victim”, in the context of Article 34 of the Convention, denotes the person or persons indirectly affected by the alleged violation. Hence, Article 34 concerns not just the direct victim or victims of the alleged violation, but also any indirect victims to whom the violation would cause harm or who would have a valid and personal interest in seeing it brought to an end (Vallianatos and Others v Greece [GC], § 47). The notion of “victim” is interpreted autonomously and irrespective of domestic rules such as those concerning interest in or capacity to take action (Gorraiz Lizarraga and Others v Spain, § 35), even though the Court should have regard to the fact that an applicant was a party to the domestic proceedings (Aksu v Turkey [GC], § 52; Micallef v Malta [GC], § 48)… ”

“16.

The interpretation of the term “victim” is liable to evolve in the light of conditions in contemporary society and it must be applied without excessive formalism …..”

(b)

Direct victim

“17.

In order to be able to lodge an application in accordance with Article 34, an applicant must be able to show that he or she was “directly affected” by the measure complained of (Tanase v Moldova [GC], § 104; Burden v United Kingdom [GC], § 33. This is indispensable for putting the protection mechanism of the Convention into motion (Hristozov and Others v Bulgaria, § 73), although this criterion is not to be applied in a rigid, mechanical and inflexible way throughout the proceedings (Micallef v Malta [GC], § 45; Karner v Austria, § 25; Aksu v Turkey [GC], § 51).”

(c)

Indirect victim

“18.

If the alleged victim of a violation has died before the introduction of the application, it may be possible for the person with requisite legal interest as next-of-kin to introduce an application raising complaints relating to the death or disappearance (Varnava and Others v. Turkey [GC], § 112). This is because of the particular situation governed by the nature of the violation alleged and considerations of the effective implementation of one of the most fundamental provisions in the Convention system (Fairfield v United Kingdom (dec.)).”

“19.

In such cases, the Court has accepted that close family members, such as parents, of a person whose death or disappearance is alleged to engage the responsibility of the State can themselves claim to be indirect victims of the alleged violation of Article 2, the question of whether they were legal heirs of the deceased not being relevant (Van Colle v United Kingdom, § 86.”

“20.

The next-of-kin can also bring other complaints, such as under Articles 3 and 5 of the Convention on behalf of deceased or disappeared relatives, provided that the alleged violation is closely linked to the death or disappearance giving rise to issues under Article 2.”

“21.

For married partners, see McCann and Others v United Kingdom [GC], Salman v Turkey [GC]; for unmarried partners, see Velikova v Bulgaria; for parents, see Ramsahai and Others v Netherlands [GC], Giuliani and Gaggio v Italy [GC]; for siblings, see Andronicou and Constantinou v Cyprus; for children, see McKerr v United Kingdom; for nephews, see Yasa v Turkey.”

“22.

In cases where the alleged violation of the Convention was not closely linked to the death or disappearance of the direct victim, the Court has generally declined to grant standing to any other person unless that person could, exceptionally, demonstrate an interest of their own (Nassau Verzekering Maatschappij N.V. v Netherlands (dec.), § 20). See, for example, Sanles Sanles v Spain (dec.), which concerned the prohibition of assisted suicide in alleged reach of Articles 2, 3, 5, 8, 9 and 14 and where the Court held that the rights claimed by the applicant, who was the deceased’s sister-in-law and legal heir, belonged to the category of non-transferable rights and that therefore she could not claim to be the victim of a violation on behalf of her late brother-in-law; see also Bic and Others v Turkey (dec.) and Fairfield v United Kingdom (dec.). ”

On analysis, applications by indirect victims in respect of Article 2 violations have been made in two capacities, which are conceptually distinct, though often combined – see e.g. Keenan v United Kingdom 33 E.H.R.R. 38, at [134]. The first is where the deceased’s next-of-kin is representing the estate or interests of the deceased. The second is where blood relatives, spouses or partners are claiming for their own pain, distress and bereavement at the ill-treatment of the deceased leading to his death. It was common ground that the Claimants were only pursuing this claim in the second capacity. I consider that they would not have been able to pursue the claim in the first capacity because they were not named by JB as his next-of-kin, when he was remanded in custody, in August 2011. The records showed that the First Claimant’s husband, Mr Godfrey Daniel, residing at an address in Hastings, was named by JB as his next-of-kin. He was contacted by the police after JB’s death and this was how the Claimants came to hear of his death.

I now turn to consider the basis upon which a person may qualify as an indirect victim and thus be able to apply on his own behalf for a remedy. As Lord Dyson said in Rabone v Pennine Care NHS Trust [2012] 2 AC 72, at [46]; “[t]he ECtHR has repeatedly stated that family members of the deceased can bring claims in their own right both in relation to the investigative obligation and the substantive obligations” in Article 2. A blood tie or marriage is not essential. An unmarried partner of the deceased was acknowledged as a victim in Velikova v Bulgaria App. No. 41488/98. There was evidence of an established relationship akin to marriage - they had lived together for 12 years; they had three young children together and the whole family was financially dependent upon him. In Morgan v Ministry of Justice [2010] EWHC 2248, Supperstone J. concluded that the deceased’s fiancée could fall within the class of “victim” though it would depend upon the nature and length of their relationship and whether they had a child together.

The Claimant submitted that the text underlined below from Supperstone J.’s judgment in Morgan at [70] was an appropriate test for me to apply. Supperstone J. said:

“It is clear from the decisions of the ECtHR that the Court takes a broad view for the purposes of determining whether a person is capable of claiming to be a “victim” of a breach of Article 2 of the Convention. The Strasbourg authorities suggest a test that involves consideration of whether the relationship between the applicant and the deceased is such that the applicant has “suffered gravely” as a result of serious violations [Veilkova v Bulgaria] and is “personally concerned” by them [Yasa v Turkey (1998) 28 EHRR 408]. Each case is to be determined on its particular facts. A family member as distant as a nephew can bring a claim; so too can a partner of the deceased, in particular if that person is also the parent of a child of the deceased. I have not been referred to any case where the applicant is a fiancée of the deceased, but in my view, such a person is capable of being a victim as falling into the category of persons who “suffered gravely” as the result of serious violations of Article 2. If the First Claimant was “merely in a relationship with the Deceased” whether that would suffice will have to be determined on the particular facts of the case. The nature and length of the relationship and whether the Second Claimant is the biological child of the Deceased will be important factors for consideration. If she is not biologically the Deceased’s daughter but “has been brought up on the understanding that she is” whether that is sufficient to make her a victim, again, will depend on the facts of the particular case…”

Whilst not intending any criticism of the passage underlined, I do not agree that it ought to stand alone as the test to be applied, because, when taken out of context of the rest of the judgment, it does not sufficiently explain the special basis upon which indirect victims have been permitted to apply in Article 2 claims and not others, and that so far they have been limited to next-of-kin and family members (including partners). The class of indirect victims has not included close friends, lovers, housemates, or colleagues from a common workplace or other institutions, such as a college or club. One can readily envisage circumstances in which such persons could “suffer gravely” and be “personally concerned” at the ill-treatment and death of their friend or colleague. Yet the Claimant’s counsel rightly does not suggest that the ECtHR would accept them as indirect victims. Some additional family tie or legal relationship appears to be required.

In my judgment, the likely approach of the ECtHR in determining the status of the Claimants in this case would be to consider all the facts and circumstances to assess:

The First Claimant and her husband were foster parents for JB for 3 years. He was aged 15 when he was placed with them by the local authority. He left when he turned 18 because he ceased to be a child in care and the foster placement terminated. As JB was born on 11 December 1973, the First Claimant thought it likely that his placement began in 1988 and ended in 1991, though she did not recall the precise dates.

The First Claimant said that JB did not know his natural parents and was adopted at age 18 months. The adoption broke down and he was placed in the care of the local authority. The local authority then placed him in foster care.

It was common ground that a local authority retains parental responsibility for a child in their care who is placed with foster parents. The child continues to be in care during the placement, and any decisions concerning the child are made by the local authority which retains responsibility for his welfare. Foster care is a valuable and flexible means of providing a home environment for children who would otherwise be in children’s homes. It can range from short term foster care, for a few weeks or months, to long term foster care for many years. Foster carers are paid by the local authority and they may have more than one foster child placed with them. The First Claimant confirmed that they were paid to care for JB but provided no details as to whether she had fostered other children before, during or after his placement.

Counsel have not been able to find any case in which, following a death alleged to be in violation of Article 2 and 3, a foster parent of the deceased has applied to be treated as a victim within Article 34.

In my view, the ECtHR would not be likely to treat foster parenting as automatically giving rise to a lifelong family/legal relationship analogous to a biological or adoptive parent, because foster parents do not have parental responsibility; foster placements are temporary and may be brief; and foster parents are providing a service to the local authority for reward. However, the ECtHR might accept that a foster parent was an indirect victim on the particular facts of the case. Some examples (by no means exhaustive), are (1) if the alleged Article 2 violation occurred during the currency of the foster placement; or (2) if the foster placement lasted for a very long period representing most of the child’s minority; or (3) if the foster parents and child had voluntarily entered into an informal parent/child relationship which transcended the limits of a conventional foster placement and continued after its termination.

The Second Claimant described himself as a “foster brother”, which is a concept recognised in the dictionary though it has no legal status. He lived with him in the family home during the 3 years of the foster placement. The Second Claimant was 9 years old when JB came to live with them.

As I have stated above, JB named Mr Daniel as next-of-kin. The First Claimant said in evidence that she recalled JB asking in 2000, before he left to work in Portugal, if “we” would be his next-of-kin and she “thought that would be all of us”. The implication was that the fact that only Mr Daniel was named was a mere technicality and she was de facto next-of-kin too. I do not agree. Mr Daniel was neither living with, nor married to, the First Claimant. They were divorced in about 1992. Mr Daniel was neither a party to this claim nor a witness. The First Claimant had not seen JB for 11 years at the time of his death, though they had telephone contact. According to the First Claimant, Mr Daniel was the “point of contact” for JB. After JB returned from Portugal in 2011, he went to visit Mr Daniel at his home in Hastings, where the Second Claimant was also living temporarily. So JB had seen Mr Daniel more recently than the First Claimant and, for all I know, there may also have other reasons why he preferred to name Mr Daniel as next-of-kin. In my view, JB’s express wishes should be respected, and his next-of-kin treated as Mr Daniel, not the First Claimant.

The Second Claimant did not assert that he considered himself to be JB’s next-of-kin.

The First Claimant’s evidence was that she treated JB as her son and part of her family during the foster placement. I observe that, as JB later asked Mr Daniel to be his next-of-kin, he must have formed a long-lasting bond with him too during the foster placement.

After JB left foster care, he came to visit the First Claimant from time to time and stayed with her for 6 months on one occasion. He became mentally ill and was admitted to a local hospital for a few months and returned to her home on discharge from hospital.

The First Claimant did not see him again after he left to live in Portugal in 2000. She planned to visit him with her sons, but did not do so because she was battling breast cancer, working full time, and caring for her elderly parents. Later, JB became unwell, and so a visit was further postponed. JB did not write or use the internet much, but they kept in contact by telephone. By the time he returned to the UK in 2011, she had moved to live in Cumbria. When she last spoke to him, he had been compulsorily admitted to a psychiatric unit under section 3 of the Mental Health Act 1983 for self-harm.

I consider it to be significant that she considered herself to be in loco parentis to him throughout the 16 years she knew him, and viewed the ongoing relationship as particularly important since he had no contact with either his natural or adoptive parents. The evidence indicates that JB felt the same way about her and Mr Daniel. Shortly before his death, he sent her a card signed “James, your 3^rd son”.

The Second Claimant’s evidence was that, during the foster placement, he looked up to JB as if he was an older brother and role-model. Despite the 6 year age gap, they spent much time together, with shared interests. After JB left, they remained in touch and the Second Claimant visited him frequently until JB moved to Portugal in 2011. The Second Claimant worked in Egypt for some of the time. So they only maintained contact by telephone, ringing each other at birthdays and Christmas. JB returned to live in the UK in about 2011. The Second Claimant met him on two occasions. JB was in poor health and had become an alcoholic. After he was remanded in custody, they exchanged letters, but the Second Claimant was in Egypt and so was not able to visit him. They considered each other to be foster brothers.

On considering the evidence as a whole, I accept that both Claimants maintained personal relationships with JB after the end of the foster placement. I accept that the First Claimant continued to view JB as her foster son, although if JB had been the First Claimant’s adopted or biological son, I consider that she would have maintained closer contact with him, judging by the closeness of her relationship with the Second Claimant. However, her relationship with him was comparable to many other family relationships which are valued, even though they are conducted at a distance, with only intermittent contact. There were understandable reasons, outlined above, why they found it difficult to meet in person. The Second Claimant also only had occasional contact with JB, for understandable reasons, but they remained in touch, and were important to one another.

As the Claimants did not live with JB, and were not in any way dependant upon him, his death had no practical impact upon them. However, I accept that it has caused them suffering. The First Claimant’s evidence was that she has been “devastated by JB’s death and the circumstances surrounding it”. She has had bereavement counselling. The Second Claimant’s evidence was that he has “struggled emotionally and mentally to come to terms” with the death and has had therapy and medication.

I consider that, as JB was only 37, and was not suffering from a life-threatening illness, his premature death would have shocked and upset them, no matter how it occurred. It is a natural reaction to question whether his life could have been saved if he had been given appropriate treatment in time. However, the First Claimant, in particular, has had a heightened emotional reaction to his death and the events surrounding it.

The First Claimant has taken a very active role in pressing for an investigation into the circumstances of JB’s death and criticising those whom she believes to be at fault. I gained the impression that she is a forceful personality. The Second Claimant seemed to have a secondary role, supporting his mother.

The First Claimant gave evidence at the Inquest. She has explained that Mr Daniel was unable to do so because of his poor health. Mr Bishop correctly pointed out that she did not fall within any of the specified categories of “interested person” under section 47 of the Coroners and Justice Act 2009 and so must have been treated by the Coroner as a person with a “sufficient interest” under sub-paragraph (m). The Second Claimant attended the Inquest.

The PPO report was sent to Mr Daniel as next-of-kin and the First Claimant then asked for a copy and challenged some of the findings. The Claimants and Mr Daniel were invited to visit the HMP Wandsworth and view JB’s cell. Only the Second Claimant wished to attend.

I am just persuaded that the ECtHR would be likely to be satisfied that the First Claimant was an indirect victim under Article 34 because:

I am not satisfied that the ECtHR would find that the Second Claimant was an indirect victim under Article 34. Unlike the First Claimant, he never had any formally recognised relationship or status in respect of JB. The status of “foster brother” is not recognised in UK domestic law or ECtHR case law. The Second Claimant was a young child when his parents fostered JB, and they only lived together for a relatively short period, many years prior to his death. Although they became close, and remained so until JB’s death, their relationship was akin to a close friendship between childhood school friends or family friends. On the authorities, this is not a sufficient basis upon which to found a claim as an indirect victim. The Second Claimant has suffered severe distress at JB’s death, but distress at the death of a friend is not a sufficient basis upon which to found a claim. The Second Claimant’s involvement in the proceedings after JB’s death has been a secondary one, as a support to his mother.

For the reasons set out above, the Claimants have failed to establish violations of Articles 2 or 3 and their claim against both Defendants is dismissed.