Khan, R (on the application of) v Secretary of State for Health

Where state agents potentially bear responsibility for a death in medical care, article 2 requires an effective, independent and public judicial investigation capable of establishing the cause and responsibility. The procedure must reflect the seriousness and circumstances of the case. The deceased’s family must be involved sufficiently to safeguard its legitimate interests.

In an exceptional case involving alleged gross negligence, a possible cover-up, complex evidence and an incapacitated family, an inquest cannot discharge that obligation unless the family can participate effectively through legal representation. An outstanding procedural obligation may be enforced under the Human Rights Act 1998 where the death preceded its commencement but the challenged refusal occurred afterwards.

The appellant’s three-year-old daughter died in an NHS hospital after receiving an excessive infusion of potassium. An independent expert characterised the conduct of the responsible staff and the NHS trust as grossly negligent. The police and the trust investigated, but the family was excluded from both processes. The trust later admitted liability without identifying the negligent acts or omissions.

Silber J dismissed the father’s application for judicial review of the refusal to fund legal representation at the forthcoming inquest or establish another public inquiry. He held that the existing investigations satisfied article 2, that representation need not be funded and that the Human Rights Act 1998 did not apply because the death preceded its commencement.

The appeal concerned the content and performance of the article 2 procedural obligation, effective family participation, the temporal application of the 1998 Act and the lawful means of funding representation.

1. Appeal allowed to the extent determined. Where state agents potentially bear responsibility for a death, article 2 requires a mechanism through which its cause and responsibility can be investigated in an effective, independent, public and judicial manner. The Convention does not prescribe a fixed procedure. The intensity of scrutiny and family participation required depends upon the seriousness and circumstances of the case.

2. The state had not discharged that obligation. The police investigation could not substitute for the required judicial inquiry because the family took no part in it and it ended without prosecution. The trust’s private inquiries were also insufficient: the family was excluded and the trust lacked the necessary independence. Its blanket admission of liability did not identify the material acts or omissions and left the family without an adequate account.

3. The coroner’s inquest was the natural occasion for the required judicial investigation, but it would not be effective unless the family could participate effectively. This was an exceptional case involving alleged gross negligence, a possible medically orchestrated cover-up, complex expert evidence and represented healthcare witnesses. The father’s psychiatric condition prevented him from participating adequately without representation. The ordinary inquisitorial character of an inquest did not remove that exceptional need.

4. The death before commencement of the Human Rights Act 1998 did not bar relief. The outstanding procedural obligation protected the deceased’s right to life, with her parents acting as proxies. The Secretary of State’s refusal occurred after the Act had entered into force. The obligation was therefore enforceable in a national court.

5. The state could comply either by reasonably funding representation at the inquest or by establishing another suitable inquiry. The Secretary of State could establish an inquiry under section 84 of the National Health Service Act 1977 and fund reasonable legal costs there. Ministers could not, however, spend public money without statutory authority, and a court could not require unlawful expenditure.

6. The court deferred deciding whether section 2 of the 1977 Act, construed under section 3 of the 1998 Act, authorised funding at the inquest. A further hearing was directed to consider that question and any alternative lawful route. Declarations reflecting the article 2 conclusions were to be settled after argument as to form.

1. Court of Appeal (Civil Division): In [2003] EWCA Civ 1129, allowed the appeal to the extent that it declared the article 2 obligation unfulfilled, effective family participation necessary and the Human Rights Act 1998 applicable. It deferred the funding-power issue for a further hearing.
2. Administrative Court: Silber J dismissed the judicial review application. He held that the existing investigations complied with article 2, that article 2 did not require funded representation at the inquest and that the pre-commencement death prevented enforcement under the 1998 Act.