Public inquiries: guidance for Ministers and officials

European Convention on Human Rights (ECHR)

The decision to hold, or not hold, an inquiry is a government decision that may be subject to judicial review. The ECHR contains obligations under Articles 2 and 3 that could be relevant to the establishment of an inquiry. Article 2 of the European Convention on Human Rights is the right to life and is interpreted as meaning that states have to have a system in place for the practical and effective investigation of the circumstances surrounding any death and the determination of responsibility.

Lord Cullen summarised that obligation in his review on Fatal Accident Inquiry Legislation^[5]

“The European Court of Human Rights has also interpreted article 2 as imposing on member states a procedural obligation. […] What is required to satisfy the procedural obligation depends on the particular case. […] As regards Scotland, Lord Hope of Craighead pointed out that the ECtHR had made it clear that an FAI was a means of carrying out an investigation which would satisfy article 2. The same should apply to a public inquiry into the circumstances in which a death occurred. […] The practical difference which article 2 makes is that it may require an FAI or a public inquiry where neither would otherwise have been held.”

This has been given judicial consideration in the following two cases.

The Kennedy and Black case

The original decision: Kennedy and Black v. The Lord Advocate and the Scottish Ministers

Reverend David Black and Mrs Eileen O'Hara were two people who had become infected with the Hepatitis C virus as a result of NHS treatment and subsequently died. The Petitioners for judicial review, who were relatives of Reverend Mr Black and Mrs O'Hara, did not think that sufficient investigation of the deaths had taken place, and claimed that Article 2 of the European Convention on Human Rights required an FAI or a public inquiry to be held. This case involved a challenge to a decision of the Lord Advocate to decline to exercise his discretion to hold an FAI and of the Scottish Ministers not to cause a public inquiry to be held into the deaths.

In the context of deaths that occur in the course of NHS treatment, Article 2 broadly obliges the State to have in place mechanisms that allow for a practical and effective investigation of the facts (this obligation also applies in other contexts, but deaths related to NHS treatment were the focus of the case). The Article 2 obligation might be satisfied, for example, by the availability of criminal investigations and proceedings, civil proceedings such as a medical negligence action, professional disciplinary proceedings, a fatal accident inquiry, a public inquiry, or any combination of these.

Lord Mackay of Drumadoon decided that in this case criminal or civil type proceedings were unlikely or not viable and that an FAI or public inquiry were the only available routes to meeting the Article 2 obligation. He overturned the decision not to order an FAI and gave the Lord Advocate and Scottish Ministers some time to decide what to do about the Article 2 obligations. Following the change of Government in 2007, Scottish Ministers ordered a public inquiry into the transmission of Hepatitis C through blood and blood products to NHS patients in Scotland. The Penrose Inquiry was established to investigate, among other matters, the circumstances of the deaths of Reverend Mr Black and Mrs O'Hara. The Lord Advocate took no further decisions about an FAI.

This case does expose, to some extent, how the inquiries available to the state interact with Article 2 obligations. It should not, however, be over interpreted.

It does not mean that a public inquiry is required for all deaths in the course of NHS treatment. Lord Mackay was satisfied that the various mechanisms in place (criminal/civil proceedings, critical incident investigations, etc.) would be capable of satisfying the Article 2 obligation in relation to the majority of deaths following treatment in hospital. It was only in the limited circumstances of these cases that he decided that an inquiry in public was required.

In addition to the original considerations, the petitioners in the Black and Kennedy proceedings continued to challenge aspects of the proposals to hold a public inquiry. They asked Lord Mackay to make detailed orders regulating how the inquiry should be set up and conducted in order to ensure Article 2 compliance. Lord Mackay decided, however, that it was the role of Ministers to set up the inquiry in accordance with the statutory framework and for the independent chair of the inquiry to conduct it in compliance with that framework. The Court was therefore careful not to usurp the statutory roles of Ministers and the chair.

This does not mean, however, that the actions of Ministers or the chair in setting up or conducting an inquiry cannot be challenged. Although Lord Mackay was not prepared to prejudge how the inquiry should be set up or conducted, decisions of Ministers or the chair in the setting up or conduct of an inquiry can be judicially reviewed after they have been taken.

The Emms case

The case of Emms petitioner further refined and clarified the position. In this case, the mother of the deceased petitioned for judicial review seeking to overturn the Lord Advocate’s decision to refuse to hold an FAI and for a declaration that the Lord Advocate’s refusal was incompatible with Article 2. The Court concluded that Article 2 rights had been met by virtue of the thorough and impartial investigation carried out by the procurator fiscal, even although an FAI had not been held.

In relation to FAIs, the Emms decision highlights that the decision as to whether to hold an FAI is one for the discretion of the Lord Advocate and is not one which is readily subject to interference. Also, that FAIs are designed for particular situations where the public interest is engaged.

It set out that not every death in a medical setting engages Article 2.

Also, that there is a distinction between failings identified in an investigation which are indicative of a one-off situation (or a single error of judgment) and those which have arisen as a result of a serious systemic failure. In the latter, questions of public concern may be raised if there are concerns that the system and procedures in operation at the hospital were so deficient that there may have been a number of deaths attributable to them or, that if these deficiencies are not addressed, there may be more deaths in the future.

The converse of the above is that if appropriate remedies following a death or deaths are put in place to address systemic deficiencies, to the satisfaction of Crown Counsel (normally supported by independent expert opinion), there is a prospect of minimising the numbers of similar deaths in the future, and thus the public concern is lessened.

It also noted that the availability of civil litigation should be considered as part of the overall picture, when assessing whether Article 2 is satisfied, whether the petitioner has chosen to use that option or not.