Case No: HQ12X03641

TLQ/15/0259

Neutral Citation Number: [2016] EWHC 23 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 19 January 2016

Before :

MRS JUSTICE LANG DBE

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Between :

(1) DOLLY DANIEL

(2) OWEN DANIEL

Claimants

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(1) ST GEORGE’S HEALTHCARE NHS TRUST

(2) LONDON AMBULANCE SERVICE

Defendants

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Ms Kirsten Sjøvoll (instructed by Irwin Mitchell) for the Claimants

Mr Edward Bishop QC (instructed by Bevan Brittan LLP) for the Defendants

Hearing dates: 30 November, 1, 2, 3, 4 & 7 December 2015

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Judgment

Mrs Justice Lang:

Introduction

1. 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.

2. 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.

3. 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.

4. 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.

5. 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”).

Issues

6. 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.

7. 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.

8. The issues in dispute are:

i) Is the operational duty under Article 2 engaged as a matter of principle?

ii) What is the relevant causation test to be applied?

iii) If the operational duty under Article 2 was engaged, was there a violation of

that duty on the facts?

iv) Did the Defendants’ acts or omissions cross the threshold of inhuman and

degrading treatment within the meaning of Article 3?

v) Are the Claimants “victims” within the meaning of section 7 of the HRA

1998?

Law

Article 2

9. Article 2(1) ECHR provides:

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

10. 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”.

11. 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.

12. 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].

13. 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. ”

14. 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.

15. 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.

16. 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.

17. 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.

18. 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].

19. 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.”

20. The application of the operational duty has developed incrementally. It may be

broadly categorised as follows:

i) Protection from attack: Osman (killing of victim of threats and harassment);

Van Colle v Chief Constable of the Hertfordshire Police [2009] 1 AC 225

(witness in criminal proceedings killed by the accused following threats).

ii) Detainees: Keenan v United Kingdom (2001) 33 EHRR 38 (suicide of mentally

ill prisoner); Edwards v UK (2002) 35 EHRR 47 (prisoner killed by cell mate);

Savage v South Essex NHS Trust [2009] 1 AC 681 (compulsorily detained

mental patient absconded and committed suicide).

iii) Informal psychiatric patients at risk of suicide: Rabone v Pennine Care v NHS

Trust (2012) 2 AC 72 (voluntary psychiatric patient committed suicide on an

authorised home visit).

iv) Protection from risk created by state authorities: LCB v United Kingdom

(1998) 27 EHRR 212 (death from radiation exposure); Oneryildiz v Turkey

(2004) 41 EHRR 20 (death in a waste dump explosion)

21. 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)

….”

22. 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.

23. 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.

24. 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”.

25. 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.

26. 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.

27. 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.

28. 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.

29. 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.

30. 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.”

31. 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.”

32. 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.

33. 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

34. Article 3 ECHR provides:

“No one shall be subjected to torture or to inhuman or

degrading treatment or punishment.”

35. 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).

Evidence

36. 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.

37. I also received hearsay evidence from the following witnesses:

i) Prison Officers (“PO”) Graeme Thompson, Olalekan Karim and Michael

Kennedy, from HMP Wandsworth, were interviewed by the Prison and

Probation Ombudsman (PPO) and gave evidence at the Inquest.

ii) Dr Carmen Fernandez and Dr Justin Reid, who were general practitioners

employed by St George’s to work in the Department of Primary Care at HMP

Wandsworth, and made statements to the Coroner.

iii) Dr Amer Salim, a general practitioner, appointed by NHS South West London

to conduct an independent clinical review of the circumstances surrounding

JB’s death.

38. 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

39. 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.

40. 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 (18th 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.

41. 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.

42. 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.

Findings of fact

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

fact.

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

September 2011.

Medical history

45. 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.

46. The Primary Care staff prescribed medication; referred him to mental health services;

and kept him under observation for alcohol detoxification.

47. 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.

Procedures for medical emergencies in the prison

48. 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.

49. 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.

50. 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.

51. 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.

Call-out to assist JB

52. 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”.

53. 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”.

54. 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).

55. 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.

56. 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.

57. 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.

58. 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.

59. 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.

60. 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.

61. 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.

62. 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.

Treatment of JB

63. 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.

64. 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….”

65. 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.”

66. 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.

67. 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.

68. 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.

69. 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.

70. 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.

71. 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.”

72. 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.

The call to the LAS

73. 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.

74. 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.

75. 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.

76. Ms Hutson advised PO Morris that the more information LAS had, the faster an

ambulance could attend.

77. 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.

78. 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.

79. 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.

80. 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?”.

81. 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”.

82. 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.

83. At 16.35.50, ambulance Q308 was despatched but at 16.37.38 it was cancelled for a

higher priority event.

84. At 16.39.21 ambulance Q407 was dispatched.

85. 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…”

86. 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.

87. 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.

88. 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”.

89. 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”.

90. 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…”.

91. 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.”

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

93. PO Morris asked Ms Hutson to remain on the line while he tried to get the

information, which took a minute or so.

94. 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.

95. 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.

96. 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.

97. At 16.42.45, FRU SW52 was despatched.

98. 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.

99. At 16.44.55, FRU SW46 was despatched.

100. 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.

101. 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.

102. 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.

Violation of Articles 2 and 3 ECHR

Article 2: the legal test

103. 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]).

Pre-existing vulnerability

104. 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.

105. 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.

Sister Gbolie’s response

106. 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.

107. 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.

108. 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.

109. Sister Gbolie was a well-qualified and experienced senior nurse of some years’

experience. She was trained in basic life support, and “immediate”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.

110. 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.

111. 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

1 Not “intermediate” life support.

have not established, on the evidence, that Sister Gbolie ought to have assumed that

his life was at risk from a possible asthma attack.

112. 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)

…”

113. 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.

114. 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.

LAS

115. 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.

116. 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.

117. 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.”

118. 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.

119. All emergency and non-emergency calls were prioritised according to the following

scale:

i) “Red 1”: the most serious and immediately life threatening (i.e. patient not

breathing or unconscious); requiring an 8 minute response.

ii) “Red 2”: serious, but not as immediately life threatening as Red 1; requiring an

8 minute response.

iii) “Green 1”: serious but not immediately life threatening; requiring a 20 minute

response.

iv) “Green 2”: serious but not immediately life threatening; requiring a 30 minute

response.

v) “Green 3”: neither immediately life threatening nor serious; suitable for further

clinical telephone assessment.

vi) “Green 4”: neither immediately life threatening nor serious; suitable for further

clinical telephone assessment.

120. 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.

121. 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.

122. 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.

123. 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.

124. 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.

125. 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.

126. 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.

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

unreasonably inflexible.

128. 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.

129. 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.

130. 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.

131. 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).

132. 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.

133. 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.

134. 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.

135. 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.

136. 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.

137. 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.

138. 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.

139. 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.

Causation

140. 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.

141. 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.

142. 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.”

143. 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….”

144. 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.

Article 3

145. 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.

Victim status

146. 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”.

147. 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.

148. 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.

149. 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.). ”

150. 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.

151. 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.

152. 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…”

153. 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.

154. 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:

i) the nature of the legal/family relationship between the Claimants and JB;

ii) the nature of the personal ties between the Claimants and JB;

iii) the extent to which the alleged violations of the Convention (1) affected them

personally and (2) caused them to suffer;

iv) involvement in the proceedings arising out of JB’s death.

Family/legal relationships

155. 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.

156. 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.

157. 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.

158. 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.

159. 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.

160. 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.

161. 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.

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

Personal ties

163. 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.

164. 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.

165. 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.

166. 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 3rd son”.

167. 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.

168. 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.

The extent to which the alleged violations of the Convention (1) affected them

personally and (2) caused them to suffer

169. 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.

170. 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.

Involvement in the proceedings arising out of JB’s death

171. 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.

172. 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.

173. 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.

Conclusions on victim status

174. 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) The First Claimant and her then husband Mr Daniel had been JB’s foster

parents for 3 years, which led to a long-standing parent/child relationship with

JB which lasted until his death. This was particularly important to JB because

he had no family of his own. The First Claimant considered that she was in

loco parentis to JB throughout his life, and he described himself as “your 3rd

son” shortly before his death.

ii) The First Claimant has suffered acute distress as a result of JB’s death.

iii) The First Claimant has taken a very active role in proceedings arising out of

JB’s death, in the role of foster mother.

175. 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.

Conclusions

176. 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.