CASE OF GRAY v. GERMANY
Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
6. The applicants are brothers. Mr Stuart Gray (the “first applicant”) lives in Blakedown, United Kingdom, whereas Mr Rory Gray (the “second applicant”) lives in Darmstadt, Germany. 7. The applicants are the sons of the late David Gray (hereinafter referred to as “Mr Gray” or “the deceased”) who died in the evening of 16 February 2008 at the age of 71 at his home in Cambridgeshire, United Kingdom. 8. Mr Gray suffered from kidney stones and from 2004 on he had regularly been attended at home by his doctor, a General Practitioner (“GP”) working for the United Kingdom’s National Health Service (“NHS”) which is represented at local level by NHS Primary Care Trusts (“PCTs”), in the instant case by Cambridgeshire NHS Primary Care Trust (“Cambridgeshire PCT”). The GP had routinely administered injections of opiates, in particular pethidine at a dosage of 100mg, for pain relief. On several occasions between 2006 and 2008 Mr Gray had recourse to out-of-hours medical services by “Take Care Now” (“TCN”), a private agency that recruits locum doctors within the United Kingdom or from abroad to supply out-of-hours medical care for several PCTs, including the Cambridgeshire PCT. Out-of-hours services concern the periods outside business hours of GP surgeries on weekdays as well as weekends and bank holidays. 9. Since TCN clinicians do not routinely carry pethidine, the deceased had on some of these occasions been injected with 10mg doses of the opiate diamorphine, contained in a sealed palliative care box TCN doctors were provided with for the purpose of home visits at that time. Such palliative care boxes were stocked with 10mg and 30mg vials of diamorphine for acute pain relief together with a much larger ampoule of 100mg intended for patients receiving palliative care. Attached to each box was a list of the drugs contained as well as a form with instructions for doctors, and inside a document that listed the relative potencies of the drugs. 10. On Saturday 16 February 2008 Mr Gray developed a severe renal colic. In the afternoon his partner contacted the TCN call centre to arrange for an urgent home visit by a doctor. She explained Mr Gray’s medical history to the TCN clinician who carried out the first telephone triage consultation and specified what medication Mr Gray had received on the occasion of previous home visits. The case was then assigned to doctor U., a German national, who had recently been recruited by TCN through an agency on a self-employed basis to provide out-of-hours care. U., at the time aged 65, had qualified as a doctor in Germany in 1972 where he was practising as an aesthetic surgeon but where he was also formally qualified as a GP. For the purpose of working as a locum doctor in the United Kingdom he had obtained registration with the British General Medical Council (GMC) in 2006 and had applied to be admitted to one of the Medical Performers Lists maintained by each of the local PCTs. Once a GP is admitted to a PCT’s Performers List he may work in the area of any other PCT in England. U. had withdrawn a first application to join Leeds Performers List after being notified that he had not reached a sufficient score in the required English language test. However, the Cornwall and Isles of Scilly PCT authorities, unaware that U. had already tried to register with another PCT, approved a subsequent application and admitted him to their Performers List in July 2007 without verifying his English language skills. 11. U. arrived in the United Kingdom on Friday, 15 February 2008 for his first shift as a locum doctor scheduled for the coming weekend. According to an induction report established by a TCN doctor on 15 February 2008 there had not been sufficient time to assess U.’s professional competence prior to his first assignment the next day. 12. U. attended Mr Gray at his home in the late afternoon of 16 February 2008. He was told by Mr Gray and his partner that in similar situations in the past he had either received injections of 100mg of pethidine for acute pain relief or, where the out-of-hours services did not carry pethidine, had been treated with diamorphine. U. administered 100mg of diamorphine from the respective ampoule included in the palliative care box by intramuscular injection. Some two hours after U. had left, Mr Gray’s partner realised that he was no longer breathing and called an ambulance. The attending emergency services confirmed that Mr Gray had died. The police was informed and attended on-site. 13. On Sunday 17 February 2008 TCN suspended U. from duty, terminated his engagement with immediate effect and advised him to return to Germany where he arrived the following day. Subsequently, two other incidents were reported where U. on the occasion of home visits on 16 February 2008 had failed to administer the appropriate medical treatment. 14. On 29 February 2008 U. returned to London to attend a hearing before the GMC in connection with the incidents on 16 February 2008. By an order of the same date, the GMC suspended the applicant from the British medical register on an interim basis. 15. On 4 March 2008 U. informed the competent public health authorities at the Arnsberg District Government (Bezirksregierung), Germany, and by letter of 11 March 2008 his German professional indemnity insurance company of the incident. He explained that when treating the deceased he had committed a grave mistake with fatal outcome that had resulted from the confusion between the drugs pethidine and diamorphine, the latter being a drug not used by on-call services in Germany and with which he had been unfamiliar. On the day of the incident he had further been overtired following his journey from Germany to the United Kingdom and had found himself in a tremendous stress situation. 16. By a letter of 17 April 2008 in reply to a complaint lodged by the first applicant following his father’s death, TCN confirmed that U. had satisfied the requirements generally expected from locum doctors working for the TCN and had completed the compulsory induction process all clinicians had to undergo before they could be assigned to clinical shifts. 17. A post mortem report issued on 25 June 2008 by a forensic pathologist in the United Kingdom established as the cause of Mr Gray’s death diamorphine poisoning in association with alcohol intoxication as well as hypertensive heart disease and myocardial fibrosis. The report further stated that the diamorphine injection had more than minimally contributed to the death and that in view of the large dose administered there was no need to necessarily invoke the additional effect of alcohol in causing death. 18. By a letter of 10 July 2008 to the deceased’s partner and the first applicant, U. apologised for the medical malpractice in connection with the deceased’s treatment and again explained that he had confused the opiates and referred to the stress situation he was subject to when making the mistake. 19. On 8 August 2008 the applicant attended a further hearing before the GMC in London where his suspension from the medical register was confirmed. 20. Following Mr Gray’s death the Cambridgeshire police commenced criminal investigations against U. for manslaughter by gross negligence. 21. On 5 March 2008 Cambridgeshire Constabulary, through Interpol London, made an application for assistance to the German Federal Office of Criminal Investigation (Bundeskriminalamt) requesting in particular the supply of data with respect to U.’s personal record and past professional career. The request was forwarded to the competent Bochum police department which provided the Cambridgeshire police with the requested information and documentation by mid-March 2008. 22. On 21 April 2008 the English Crown Prosecution Service (CPS) sent a formal letter of request to the Ministry of Justice of the Land North RhineWestphalia, Germany, in accordance with the European Convention on Mutual Assistance in Criminal Matters 1959, requesting assistance in obtaining information with respect to U.’s medical qualifications and the authenticity of the related certificates submitted by him to the British authorities when applying to be admitted as a locum doctor. The letter gave a short summary of the circumstances of Mr Gray’s death and specified that while no criminal proceedings had yet been instigated in the United Kingdom, the offence investigated constituted manslaughter, i.e. the unlawful killing of a human being, an offence contrary to Common Law and punishable on conviction by a term of life imprisonment. The CPS asked the German authorities to carry out the respective investigations and to arrange for hearings of the relevant witnesses in Germany in the presence of representatives of Cambridgeshire Constabulary. 23. The request was forwarded by the North Rhine-Westphalia Ministry of Justice to the Hamm General Prosecution Authorities (Generalstaatsanwaltschaft) as well as to the locally competent Bochum prosecution authorities. By a decision of the Bochum Chief Public Prosecutor (Oberstaatsanwalt) of 6 June 2008 the request for assistance was granted and by letter of the same date the Bochum police department was informed accordingly and invited to provide the requested assistance and to coordinate any future investigation measures with Cambridgeshire police. 24. Simultaneously, the Bochum Chief Public Prosecutor ex officio initiated preliminary criminal proceedings (Ermittlungsverfahren) against U. in Germany under file no. 49 Js 174/08 on suspicion of having negligently caused the death of Mr Gray pursuant to Article 152 § 2 of the German Code of Criminal Procedure in conjunction with Articles 222 and 7 § 2 no. 1 of the German Criminal Code (see Relevant domestic and international law and practice below). In a letter of the same date the Chief Public Prosecutor instructed the Bochum police to conduct the necessary investigations also in respect of the domestic preliminary proceedings, in particular to interview the suspect U., who was represented by counsel. He further explicitly invited Bochum police to permit the presence of English police officers also on the occasion of such interview. 25. In accordance with the letter of request dated 21 April 2008, Cambridgeshire police officers visited Germany on several occasions in the period from July until September 2008 and were provided with assistance by the German police in their investigations against U. The investigations focussed on the authenticity of the certificates U. had submitted to the English health authorities as evidence of his medical qualifications as well as on the question whether U.’s treatment of the deceased had amounted to medical malpractice. At the request and in the presence of officers of Cambridgeshire police, German police officers heard, inter alia, representatives of U.’s professional indemnity insurance company, of the public health authorities at the Arnsberg District Government and the Westphalia-Lippe Medical Association (Ärztekammer) as witnesses. The originals of the protocols of the witness hearings conducted as well as the material obtained in the course of the investigations were handed over to Cambridgeshire police. On 10 July 2008 German and British police officers visited U. at his surgery in Witten, Germany, and informed him that criminal investigations were pending against him in Germany and the United Kingdom. U. availed himself of his right not to testify. He also declined a subsequent request by the Cambridgeshire police to be interviewed in the United Kingdom. 26. Furthermore, at the request of the Cambridgeshire Constabulary a forensic expert opinion was obtained from a professor of Essen university hospital on the question whether the treatment of the deceased by U. had complied with medical standards. The expert established his report on the basis of the information contained in the Cambridgeshire police’s investigation files. He presented his preliminary findings to representatives of Cambridgeshire Constabulary on the occasion of one of their visits to Germany in September 2008. In his final report issued on 18 September 2008 the expert confirmed that the cause of Mr Gray’s death had been an overdose of diamorphine. He pointed out that notwithstanding the fact that the therapeutical use of diamorphine was in general not permitted in Germany and therefore doctors in Germany were as a rule not trained in its use, U. had not sufficiently investigated the cause of Mr Gray’s acute pain and had not verified whether the medication administered and its dosage had been an appropriate therapy under the circumstances. The expert concluded that U.’s treatment of the deceased had thus been inadequate and had violated basic principles of medical care. 27. According to a file note by a Bochum police officer of 23 September 2008, the Cambridgeshire police, for their part, had provided their German counterparts upon request with certain documents for use in the preliminary proceedings conducted against U. in Germany, namely with the post mortem report of 25 June 2008 as well as protocols of statements made by Mr Gray’s partner following the latter’s death. 28. By a letter of 1 October 2008 counsel for the second applicant practising in Germany informed the Bochum prosecution authorities that his client was the son of a patient who had possibly been killed by U. on 16 February 2008 through medical malpractice. Counsel asked for information whether preliminary criminal proceedings were pending against U. and, should this be the case, requested access to the relevant investigation files. By a letter of 23 October 2008 counsel for the second applicant reiterated his request for information whether preliminary proceedings had been instituted against U. Pursuant to a file note by the Bochum public prosecution authorities dated 30 October 2008 counsel was informed about the pending preliminary proceedings and forwarded copies of excerpts of the investigation file such as the forensic expert opinion of 18 September 2008 and the letter of March 2008 by which U. had notified the incident to his professional indemnity insurance company. 29. By a letter dated 6 November 2008, Cambridgeshire Constabulary, referring to a telephone conversation of the previous day, requested the German public prosecution authorities to assure that no criminal proceedings would be instituted against U. in Germany prior to finalisation of the investigations in the United Kingdom and that none of the information gathered in the course of the investigations carried out jointly by German and British police officers on the occasion of their visits to Germany would be disclosed to U., Mr Gray’s relatives or their respective counsel. According to a file note by the Bochum public prosecution authorities of 5 November 2008, the German prosecution authorities had informed Cambridgeshire Constabulary in reply to a similar request made over the phone that day that they had been obliged by operation of law to institute preliminary criminal proceedings against U. in Germany and that they were also obliged under German criminal procedure to grant counsel for the accused as well as counsel for the victim’s relatives acting as joint plaintiffs to the prosecution (Nebenkläger) the right to inspect the files in such preliminary proceedings. 30. On 6 November 2008, German counsel for the second applicant, referring to the preliminary proceedings conducted under file no. 49 Js 174/08 against U., transmitted the latter’s apology letter of 10 July 2008 to the deceased’s partner and the first applicant as well as the TCN’s letter to the first applicant dated 17 April 2008 to the Bochum prosecution authorities for inclusion in the investigation file. 31. On 27 February 2009 an arrest warrant was issued against U. by the Huntingdon Magistrates’ Court, Cambridgeshire. On 12 March 2009 the Colchester Magistrates’ Court issued a European Arrest Warrant (”EAW”) against U. for allegedly having caused the death of Mr Gray with an overdose of morphine. 32. On the same day, 12 March 2009, the Bochum Chief Public Prosecutor ordered that the preliminary criminal proceedings against U. be terminated and applied to the Witten District Court for a penal order (Strafbefehl) to be issued against U. convicting him of having caused Mr Gray’s death through negligence pursuant to Article 222 of the Criminal Code and imposing a suspended prison sentence of 9 months as well as a payment of 5,000 euros (EUR) to the treasury. A draft of the penal order was attached to the application. Following previous discussions with the public prosecution authorities, U., represented by counsel, had declared that he would accept the envisaged sentence. 33. The Chief Public Prosecutor’s assessment of the facts of the case and U.’’s statements following the incident, the post mortem report of 25 June 2008, the forensic expert opinion of 18 September 2008, the explanatory letter by TCN to the first applicant of 17 April 2008, U.’s notification to his professional indemnity insurance company dated 11 March 2008 as well as his apology letter to the deceased’s family of 10 July 2008. The Chief Prosecutor found that while the fact that U. did not have a criminal record, had made a full confession and had apologised to the victim’s relatives had to be considered in his favour and notwithstanding the fact that an ampoule with a fatal dose of morphine had been included in the care box, U. had nevertheless committed a grave error in the deceased’s treatment and had thus violated basic principles of the medical profession. 34. On 13 March 2009 the EAW was forwarded by the British authorities to the German Federal Office of Criminal Investigation. 35. By email of 17 March 2009 the Cambridgeshire police asked the Bochum public prosecution authorities for information about the procedure to be followed by the German authorities after transmission of the EAW. In their reply of the same day the Bochum public prosecution authorities specified that the Hamm General Prosecutor (Generalstaatsanwalt) was the competent authority to deal with questions regarding U.’s extradition and pointed out that extradition might be hindered on the ground that criminal proceedings were also pending against U. in Germany. On the occasion of a phone call later the same day Cambridgeshire police was informed by the Hamm General Prosecution authorities that execution of the EAW was halted in view of the criminal proceedings pending against U. in Germany in accordance with section 83b (1) of the Act on International Cooperation in Criminal Matters (see Relevant domestic and international law and practice below). 36. On 20 March 2009 the Witten District Court issued the penal order (file no. 49 Js 174/08) against U. as applied for by the prosecution authorities. By a decision of the same day, the District Court determined that the probation period for U. was two years starting from the date the penal order became final. 37. By a letter dated 23 March 2009 the CPS asked the Ministry of Justice of the Land of North Rhine-Westphalia for information why the EAW had not yet been executed and for clarification whether any criminal or other proceedings were conducted, pending or envisaged against U. in Germany as well as for copies of related court decisions. 38. By fax dated 14 April 2009 newly appointed counsel for the second applicant practising in Germany asked the Bochum prosecution authorities for information whether the preliminary proceedings against U. had meanwhile been terminated and whether a bill of indictment had been issued. Counsel further asked for information whether a possible trial was to be conducted in Germany or in the United Kingdom. He finally requested to be granted access to the files in the proceedings under file no. 49 Js 174/08. It follows from a subsequent letter by counsel dated 19 May 2009 that his request for inspection of the files was granted. However, it is not clear on what date between 14 April and 19 May 2009 counsel actually obtained access to the file. 39. On 15 April 2009, no appeal having been lodged by U., the penal order of 20 March 2009 became final in accordance with Article 410 of the German Code of Criminal Procedure (see Relevant domestic and international law and practice below). 40. By written submissions dated 6 May 2009 the Hamm General Prosecution Authorities (Generalstaatsanwaltschaft) requested the Hamm Higher Regional Court (Oberlandesgericht) to declare U.’s extradition to the United Kingdom inadmissible since U. had been convicted by final decision of a German court for the offence underlying the extradition request and the sentence imposed upon him was currently in the process of being executed. His extradition would therefore be contrary to the ban on double jeopardy as reflected in section 9 (1) no. 1 of the Act on Cooperation in Criminal Matters as well as Article 3 no. 2 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JI) (see Relevant domestic and international law and practice below). 41. By a decision of 14 May 2009 the Hamm Higher Regional Court, endorsing the reasoning of the Hamm General Prosecution Authorities, declared U.’s extradition inadmissible. 42. By a letter of 27 May 2009 the Hamm Chief Prosecutor communicated the Higher Regional Court’s decision to the Colchester Magistrates’ Court in Chelmsford, United Kingdom. 43. By a letter of the same day the Bochum Chief Public Prosecutor, in reply to the CPS’s information request of 23 March 2009, explained that he had been obliged by operation of domestic law to instigate criminal investigations against U. after having learned of the circumstances of Mr Gray’s death through the CPS’s request for assistance dated 21 April 2008. He specified that the domestic proceedings had meanwhile been terminated and that U. had been convicted by a final decision of the Witten District Court for having negligently caused Mr. Gray’s death. A copy of the related penal order of 20 March 2009 was attached to the letter. 44. On 1 July 2009 a meeting between the representatives of the Bochum prosecution authorities, the CPS and Cambridgeshire police took place at Eurojust in The Hague with a view to providing explanations on the conduct of the criminal investigations and proceedings in Germany. The content of these discussions is confidential. 45. In August 2009 and April 2010 counsel for the second applicant was again granted access to the files in the terminated criminal proceedings against U. under file no. 49 Js 174/08. 46. As a consequence of the German authorities’ decision not to extradite U., the criminal investigations in the United Kingdom were discontinued. 47. After U. had informed the Arnsberg District Government of Mr Gray’s death in March 2008, the competent District health authorities commenced investigations regarding U.’s fitness to practice as a doctor (approbationsrechtliches Verfahren). Within the scope of their investigations the health authorities, inter alia, conducted interviews with U. on two occasions in March 2009 and November 2010 with a view to clarifying the circumstances of the incidents of 16 February 2008 and with a view to examining U.’s fitness to practice in general. Furthermore, at the applicants’ request a meeting was arranged between them and representatives of the Arnsberg District Government on 27 48. Following completion of their investigations by the end of 2010 the health authorities, considering U.’s professional conduct over the last 30 years in Germany, the fact that he had committed himself to refrain from practising medicine abroad in the future and taking into account the particular circumstances under which U.’s medical malpractice had occurred, found that there was nothing to establish that U. would commit a similar error of treatment in Germany or that he lacked the necessary qualifications for practising medicine. Consequently, the health authorities held that there was no need to suspend or revoke U.’s licence to practice medicine in Germany and discontinued the proceedings regarding U.’s fitness to practice. 49. By written submissions of 15 April 2010 the Westphalia-Lippe Medical Association applied for the opening of disciplinary proceedings against U. for breach of his professional duties in connection with the incidents in the United Kingdom on 16 February 2008. 50. By a decision dated 27 April 2011 of the competent Münster Administrative Court sitting in a special formation as disciplinary jurisdiction for the healthcare professions (Berufsgericht für Heilberufe) U. was reprimanded for having disregarded the standards of the medical profession on the occasions of three patient consultations on 16 February 2008 in the United Kingdom, in particular for having committed a grave error in the treatment of Mr Gray, and fined him 7,000 EUR. The decision became final on 4 June 2011. 51. A number of further investigations and proceedings were instituted in the United Kingdom following Mr. Gray’s death. An Inquest into the circumstances of the incident was held by the Cambridgeshire Coroner from 14 January to 4 February 2010. The latter not only returned the verdict that the deceased had been unlawfully killed as a consequence of the inadequate treatment administered by U. but also pointed explicitly to the deficiencies in the recruitment, training and supervision of foreign locum doctors in the United Kingdom. These deficiencies were at the origin of a subsequent report by the Coroner to the Secretary of Health and resulted in investigations by the House of Commons Health Committee as well as in an independent inquiry by the Care Quality Commission, a public body overseen by the Department of Health, which came to similar conclusions as the Inquest and identified related shortcomings in the British health system. Moreover, on the occasion of proceedings conducted by the General Medical Council regarding U.’s fitness to practice in the period from 2 to 18 June 2010, the circumstances of Mr Gray’s death were further investigated and additional evidence from expert witnesses and the deceased’s next of kin was considered. The GMC Fitness to Practice Panel considered that U. had breached several of the basic principles of good medical practice and decided to formally strike U.’s name from the medical register in the United Kingdom. In addition, in 2009 the applicants brought civil claims for damages for unlawful killing arising out of negligence with the High Court against U., TCN as well as Cambridgeshire PCT in the United Kingdom. The applicants’ compensation claims were settled with respect to all three defendants by consent orders of December 2009, January and August 2010.