Hospital deaths and Article 2 inquests

April 8, 2019

This article was originally published in AvMA Lawyers Service Newsletter April 2019.

By Sara Sutherland

Article 2 of the European Convention on Human Rights provides that:-

‘Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.’

This is an absolute right from which no derogation is allowed.

So when is Article 2 engaged within the Coronial process and what does it mean?

There are 4 fundamental questions to be answered during the course of an inquest; who has died, when did they die, where did they die and how did they come by their death.  In those cases where Article 2 has been engaged the scope of the inquest is widened to consider ‘how and in what circumstances’ the Deceased came by their death.

So when is Article 2 engaged?  The state’s procedural obligations under Article 2 (to hold an effective public investigation by an independent official body) are engaged when the state is suspected of failing to have in place an appropriate system and regulatory framework to:-

  • protect life or to
  • safeguard lives or to
  • refrain from taking lives.

It is unlikely that these substantive obligations will have been violated where appropriate systems are in place and appropriate measures have been adopted for the protection of patients’ lives (although there may be some exceptional circumstances where the acts and omissions of the authorities, engage Article 2, please see below).

How does this translate to those deaths that occur in hospital?  The Chief Coroner in the case of  R (on the application of Gerard Joseph Parkinson) v HM Senior Coroner for Kent & Dartford and Gravesham NHS Trust [2018] EWHC 1501 (Admin), confirmed that where there has been adequate provision for securing high professional standards among health professionals and the protection of patients’ lives, matters such as an error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a patient are not sufficient of themselves to invoke Article 2.

In what ‘exceptional circumstances’ will Article 2 be engaged?  The Grand Chamber of the European Court of Human Rights in Lopes de Sousa Fernandes v Portugal (app. No. 56080/13), judgment of 19th December 2017 identified “very exceptional circumstances” in which the responsibility of the state under the substantive limb of Article 2 may be engaged in respect of the acts and omissions of healthcare providers:-

  • “The first concerns a specific situation where an individual’s life is knowingly put in danger by denial of access to life-saving emergency treatment … It does not extend to circumstances where a patient is considered to have received deficient, incorrect or delayed treatment.”
  • The second “arises where a systemic or structural dysfunction in hospital services results in a patient being deprived of access to lifesaving emergency treatment and the authorities knew about or ought to have known about that risk and failed to undertake the necessary measures to prevent that risk from materialising, thus putting the patients’ lives, including the life of the particular patient concerned, in danger …”

The ECHR identified that the factors which, taken cumulatively, must be met:-

  • “the acts and omissions of the health-care providers must go beyond a mere error or medical negligence, insofar as those health-care providers, in breach of their professional obligations, deny a patient emergency medical treatment despite being fully aware that the person’s life is at risk if that treatment is not given …”
  • “The dysfunction at issue must be objectively and genuinely identifiable as systemic or structural in order to be attributable to the state authorities, and must not merely comprise individual instances where something may have been dysfunctional in the sense of going wrong or functioning badly …”
  • “There must be a link between the dysfunction complained of and the harm which the patient sustained.”
  • “The dysfunction at issue must have resulted from the failure of the State to meet its obligation to provide a regulatory framework in the broader sense.

As the High Court set out in Parkinson; “at the risk of over-simplification, the crucial distinction is between a case where there is reason to believe that there may have been a breach which is a “systemic failure”, in contrast to an “ordinary” case of medical negligence”.  Allegations of what are in truth allegations of “individual negligence” should not be “dressed up as systemic failures”.

Parkinson confirmed that the primary procedural obligation of Article 2; “is to have a system of law in place, whether criminal or civil, by which individual failures can be the subject of an appropriate remedy.  In the law of England and Wales that is achieved by having a criminal justice system, which can in principle hold to account a healthcare professional who causes a patient’s death by gross negligence; and a civil justice system, which makes available a possible civil claim for negligence.”

In my opinion the bar has been set high and it will follow that the number of Article 2 inquests will reduce.  This will not however prevent Coroners conducting an independent, full, fair and fearless investigation.

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