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

The investigative obligation implied by Article 2 is adjectival. It supports the substantive duty to protect life and is shaped by the circumstances of each case. Where a patient dies in hospital through alleged negligence, compliance may be achieved through an effective independent system establishing the cause of death, determining professional responsibility and providing access to civil redress. There is no universal requirement for family participation, cross-examination, equality of arms or publicly funded legal representation at an inquest. An inquest is inquisitorial and need not be conducted as adversarial litigation. The duty to investigate is not free-standing and cannot arise under the Human Rights Act 1998 where the death occurred before that Act came into force.

The claimant sought judicial review concerning the death of his three-year-old daughter during hospital treatment. He argued that investigations by the police and hospital did not satisfy the state’s Article 2 obligation because the family had not been involved and lacked legal representation at the forthcoming inquest. He sought funding for representation or, alternatively, a public inquiry funded by the Secretary of State.

The Secretary of State argued that the investigations and available remedies satisfied Article 2, that legal funding was not required, and that the Human Rights Act 1998 did not apply because the death occurred before its commencement.

1. Article 2 duty. The court held that the investigative obligation is adjectival and depends on the substantive Article 2 duties. Its scope is flexible and must be fashioned according to the circumstances. In hospital-negligence cases, the obligation is satisfied by an effective independent system for establishing the cause of death, professional responsibility and appropriate civil redress.
2. Compliance. The police investigation, hospital investigations, independent medical evidence, admission of liability, civil remedy, professional disciplinary mechanisms and the proposed inquest together provided effective scrutiny. The state was not under an absolute obligation to establish the precise cause of death where the evidence permitted a reasoned conclusion but medical disagreement remained.
3. Family participation and funding. Family participation is not invariably required and there is no universal entitlement to cross-examine witnesses or equality of arms. The claimant’s meetings, access to investigative material and the Trust’s offer to answer questions were sufficient. Even assuming further investigation was required, Article 2 did not oblige the Secretary of State to fund legal representation at the inquest. An inquest is an inquisitorial fact-finding process, not adversarial litigation.
4. Commencement. The Human Rights Act 1998 had no retrospective effect. Since the death occurred before the Act came into force, the substantive Article 2 obligation was not engaged and the implied investigative duty did not arise.
5. The claim was dismissed on each of those independent grounds.