Jeremy Hyam QC: Mere negligence may breach Art 2 in NHS hospital cases
12 January 2016
In the Chamber Judgment (currently available only in French) in the case of Lopes de Sousa Fernandes v. Portugal (App. No. 56080/13) decided just before Christmas, the European Court of Human Rights (ECtHR) held that there was both a substantive (by 5 votes to 2) and a procedural (unanimous) violation of Article 2 in the case of the death of the Applicant’s husband in circumstances where there was a negligent failure to diagnose meningitis shortly after (successful) nasal polyp surgery, even though that negligent failure was not necessarily causative. This very surprising outcome is important, and may be seen as a radical departure from the established case law of the Court on the necessary threshold for establishing an Article 2 violation in State (i.e. NHS) hospital cases. It also underlines the increased importance of informed consent in clinical negligence cases when viewed from a human rights perspective.
The deceased underwent nasal polypectomy on 26th November 1997. The operation went well and he returned home the same day. However, the deceased quickly began to suffer severe headaches and returned to the emergency department of his local hospital at 0130 in the morning. He was examined by a number of doctors including a neurologist, and was diagnosed as suffering from a psychological disorder and prescribed tranquilisers. It was recommended that he be discharged from hospital but his wife opposed this. He was examined later that morning (by a new medical team) and diagnosed with bacterial meningitis. He was thereafter transferred to intensive care until 5th December 1997, was stabilised and discharged from hospital on 13th December 1997 in an apparently stable condition. His pain persisted however and he returned to hospital twice on 19th December 1997 and again on 25th January 1998 but was again discharged. He attended a different hospital on 17th February 1998 and was again hospitalised, this time because he suffered from chronic diarrhoea with microcytic anaemia. The medical team had several hypotheses about his condition including, pseudomembranous colitis, infection by C-difficile, or Crohn’s disease. Each was excluded. But after that his condition deteriorated and he died at that hospital on 8th March 1998 from the consequences of septicaemia caused by peritonitis and hollow viscera perforation.
Nature of Claim and findings of the Court
The Applicant alleged a violation of Article 2 with respect to her late husband’s right to life, in particular that he had lost his life due to a hospital acquired infection (the meningitis) and repeated acts of negligence by the treating hospital staff. In particular she criticised inadequate medication at an early stage of his admission which meant that he required larger doses of drugs than would otherwise have been necessary and that there was a delay in identifying and treating the perforation of his duodenal ulcer.
In the light of the medical evidence, and without wishing to speculate on the chances of survival of the deceased, the Court took the view that the meningitis could have been diagnosed earlier and that the lack of co-ordination of the ENT department and the Emergency department revealed a deficiency (dysfunction) in the public hospital service. In the Court’s view this amounted to the deprivation of appropriate emergency care and a violation of the right to life under the substantive limb of Article 2 – see §114 referring to the cases of Mehmet Senturk v. Turkey 13423/09; §97; and Asiye Genc v. Turkey 2401/07 §82.
Causation and the procedural obligation
The Court also found a violation of the procedural limb of Article 2 because the Applicant had not been able either to file her criminal complaint until four years, or bring civil proceedings until five years after her husband’s death.
Interestingly, and despite the range of opinions that had been given in the various proceedings, the Court also concluded that the Applicant had not received an adequate explanation of the cause of the deceased’s death in breach of the procedural obligation under Article 2. This was because it was agreed that the deceased had not died of the meningitis that affected him after his polypectomy. The Court considered the additional complications which had occurred were (see §142) “directly linked” to this episode, and that the Applicant had not had a full explanation of the nature of the linkage.
Lastly, at §143, the Court observed that if meningitis was a complication liable to arise after such an operation, the domestic court ought to have established clearly whether the deceased had been properly informed of such a risk. The Court observed that States were required to take the necessary measures so that doctors considered the foreseeable consequences of medical intervention for the physical integrity of patients and that patients were entitled to be informed in advance and in clear terms of such risks (citing V.C v. Slovakia 18968/07 §107-117; Arskaya v. Ukraine 45076/05 §89) and that the relevant State authority was capable of being responsible for the failure to impart this information and ensure fully informed consent (c.f. Trocellier v. France no. 75725/01).
There was a joint dissenting opinion on the substantive breach of Article 2 from Judges Sajo (President) and Tsotsoria. They said, quite trenchantly:
“We are not ourselves qualified to deal with medical diagnosis. In particular, in the absence of expert medical opinion to the contrary, we do not perceive a link between an alleged delay in the diagnosis of meningitis that occurred on 29 November 1997 and the death on 8th March 1998 which was not caused by the meningitis. Not even the 13th December 1999 forensic opinion implied such a causal link. We cannot understand how an alleged organisational negligence that did not result in death can be construed as the basis of State responsibility for failing to protect life….
…Lastly and most importantly, the attribution of State responsibility exclusively on the basis of an alleged lack of coordination among the various units of the same hospital radically departs from the principles referred to in the judgment itself…[viz.”une mauvaise coordination entre professionels de santé “ from Byrzykowski v. Poland 11562/05 §104] . “
They added that it was their view that in the case-law “mauvaise” coordination means negligent (see Powell v. UK) 45305/99; and whichever type of coordination (mauvaise or negligent) they were confronted with, the position of the Court had so far been that this cannot, in itself, result in the violation of a positive obligation of the State absent some “additional” element. Even assuming there had been a causal relationship, they thought that this would not have been enough to find a violation in the light of inter alia, Byrzykowski; Erikson and Powell and Calvelli and Ciglio v. Italy 32967/96.
As may be seen from the trenchant dissent, this case may be seen as a ‘radical’ departure from the established case-law as to what is required for the proof of a substantive Article 2 violation. On the basis of the decision of the majority of the court, “mere” negligence may in certain circumstances (and here the relevant circumstance was simply negligent coordination of information between units of the same hospital) be sufficient to establish a violation.
The radical nature of this departure from the case-law of the Court may be seen by considering Powell v. UK, a case of alleged medical negligence in which a young boy had died in an NHS hospital, where the parents said that his death had been caused by the negligence of the hospital. In that case (and subsequently) it has been held that the Court:
“… 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.”
Powell therefore, (and cases decided following it, e.g. Savage, Rabone etc.) was well established authority for the proposition that, in the context of care of patients in hospitals, something more (although it is not specified precisely what) is required to establish a breach of the Article 2(1) positive obligation to protect life than, simply, a failure on the part of the hospital to meet the standard of care of the patient required by the common law duty of care. Yet here, in the Fernandes case, however one describes the dysfunctional communication between the Emergency and ENT departments in relation to the diagnosis of meningitis, it was no more or less “negligent” than the kind of miscommunication which is regularly seen between state bodies (or internal units of state bodies) regularly at inquests, or in clinical negligence trials and is consistently explained in those contexts as an individual error of judgment rather than a systemic failure and a violation of Article 2.
The Fernandes case is also of interest because it underlines the increasing role which the concept of informed consent is having both in domestic case-law (e.g. Montgomery in the Supreme Court) and in the ECHR jurisprudence, in raising the minimum standard of information on risk which medical practitioners must convey to patients before attempting invasive treatment.
Under Articles 43 and 44 of the Convention, the Chamber judgment is not final. During the three month period following its delivery any party may request that the case is referred to the Grand Chamber. Given the strength of the dissent and the importance of the point at stake, it will be interesting to see if this matter is referred for further consideration by the parties. In the meantime it is a case that may well cause Coroners and Clinical Negligence practitioners to pause for thought about whether the particular facts of a case before them might result in not just a finding of “mere” negligence, but of a violation of Article 2 to boot.
[Update: On 2 May 2016 the Grand Chamber Panel accepted the Portuguese Government’s request that the case be referred to the Grand Chamber.]