Slamming the door on system failure in medical negligence inquests – Jeremy Hyam QC
19 June 2018
R (Parkinson) v. HM Senior Coroner for Kent and Others – read judgment
If anyone had the lingering hope that the door to argue “system failure” in any but the most exceptional case of medical negligence remained ajar after the decision of the Grand Chamber in Lopes de Sousa, then the recent Divisional Court decision in Parkinson shows the door has been well and truly slammed shut.
On 9th January 2011 Mrs Kathleen Parkinson died at the A & E Department of Darent Valley Hospital. She was aged 91 and dying. She had been taken to hospital by her son. On arrival in A & E she was assessed by a nurse and then by a Dr Hijazi. Dr Hijazi formed the view that she was dying, that there was no useful treatment that could be given her, and that as she was in the last moments of life, doing anything would not have been beneficial to her. Her son who, wanted her to be treated, became aggressive and eventually attempted to perform mouth to mouth resuscitation although advised against this by A and E staff. Mrs Parkinson deteriorated rapidly and died soon after arriving.
An inquest was convened and although Article 2 was kept under review throughout the inquest, the Coroner determined that it was not an Article 2 inquest. He rejected the submission that he ought to enter a verdict of gross negligence manslaughter and found that Mrs Parkinson died of natural causes and that any additional treatment that could have been provided to her in the short time she was at the Darent Valley Hospital would have been ineffective given the advanced stage of dying she was in. He refused the request to provide a report on the prevention of future deaths under paragraph 7, Schedule 5 of the Coroners’ Justice Act 2009.
The judicial review proceedings
By a claim for judicial review Mrs Parkinson’s son advanced five grounds of challenge:-
(1) The Senior Coroner’s finding that the enhanced investigative duty under Article 2 did not arise in this case can only have been based upon a misinterpretation of the applicable law and in breach of the Claimant’s Convention rights.
(2) The Senior Coroner’s finding regarding the medical cause of death was irrational.
(3) The Senior Coroner’s use of a short form Conclusion to find that Mrs Parkinson died from “natural causes” did not constitute a sufficient discharge of his duties under the Coroners and Justice Act 2009 (“CJA”), under subordinate legislation and at common law; and/or was irrational.
(4) The Senior Coroner’s finding that the Claimant’s conduct obstructed the care which would otherwise have been provided by Dr Hijazi to Mrs Parkinson was irrational.
(5) The Senior Coroner’s failure to make a Prevention of Future Death Report can only have arisen from a misunderstanding of the nature of his duty to do so under the CJA.
Permission was granted on all grounds on the papers by Mostyn J.
A strong Divisional Court, comprised of Lord Justice Singh, Mr Justice Foskett and HHJ Lucraft QC (the Chief Coroner) dismissed the claim on all grounds. Most significantly the Court used the case an opportunity to restate the law on Article 2
and system failure following the “case of great importance” Lopes de Sousa Fernandes v. Portugal app. no.56080/13.
After a review of domestic and Strasbourg authority on Article 2, at paragraphs 83 to 91 of the judgment the Divisional Court give a succinct summary of the relevant principles on Article 2 as they apply to medical cases.
Noticeably the Divisional Court in its summary do not try to rephrase some of the (distinctly foreign) language of Strasbourg jurisprudence. Thus at paragraph 88 the Court summarise the principle that mere negligence will not engage Article 2, but rather a failure which results from “a dysfunction in the hospital’s services and this will be a structural issue linked to deficiencies in the regulatory framework”.
To try to assist with the problem of sorting the ‘sheep’ (mere negligence) cases from the ‘goats’ (system dysfunction cases), the Divisional Court identify that 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. But this contrast really begs the question and requires further analysis.
The ‘crucial distinction’ is based on paragraph 195 of Lopes De Sousa which in English reads:
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 must have been dysfunctional in the sense of going wrong of functioning badly
Applying this to the NHS is not so straightforward. What is a systemic or structural dysfunction? In Takoushis
the Court of Appeal thought a local triaging system might be defective and required investigation under Article 2, and in Humberstone Smith LJ considered that evidence recently produced to the Court suggested that there was an issue as to whether the resources and operational systems of the Yorkshire Ambulance Service were arguably deficient so as to engage Article 2.
Perhaps the ‘touchstone’ of what will or will not be sufficient to engage Article 2 rests on the distinction between a systemic “dysfunction” and systemic “breakdown” or “malfunction” a distinction far clearer from the French text of para. 195:
le dysfonctionnement en cause doit être objectivement et réellement reconnaissable comme systémique ou structurel et ne doit pas seulement comprendre les cas individuels dans lesquels quelque chose n’a pas ou a mal fonctionné
This distinction is more clearly brought out in Lopes de Sousa where the categories of ‘exceptional’ circumstances which may engage Article 2, were limited to:-
(a) Where an individual’s life is knowingly put in danger by denial of access to life-saving emergency treatment but does not extend to circumstances where a patient is considered to have received deficient, incorrect or delayed treatment.
(b) Where a systemic or structural dysfunction in hospital services results in a patient being deprived of access to life-saving 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 patient’s lives, including the life of the particular patient concerned in danger – see cases of Genc, and Aydogdu.
It is reinforced by the Court saying that for a case to fall into the ‘exceptional’ circumstance of ‘denial of access’ to treatment the following factors taken cumulatively must be met:-
(i) 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 – Senturk §85
(ii) The dysfunction at issue must be objectively and genuinely identifiable as systemic or structural in order to be attributable to the 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 – see Aydogdu §87 and Lazar §69-70
(iii) There must be a link between the dysfunction complained of and the harm which the patient sustained.
(iv) The dysfunction must have resulted from the failure of the State to meet its obligation to provide a regulatory framework in the broader sense viz. “the duty to ensure the effective functioning of the regulatory framework. The regulatory duties thus encompass necessary measures to ensure implementation, including supervision and enforcement.”
Perhaps unsurprisingly, given its tone, no mention was made by the Divisional Court of the incandescent dissent in the Grand Chamber of Judge Pinto de Alberquerque (of Portugal) who at §74 of his dissent lamented: “the majority’s major herculean effort to narrow the pervious case-law as much as possible with a view to limiting the Court’s jurisdiction. The direct consequences of this ideological choice are not victim neutral, since they allow the State to shirk responsibility for the negligent death or serious injury under the Convention and, by so doing, to shunt off victims and their relatives into a corner of neglect and secondary victimisation, also knowns as post-crime victimisation. Moreover, excessive deference to some governmental interests in privatising and narrowing human rights, traps the Court in a prison house of irrelevance.”
Nor do they mention Judge Serghides who at §15 of his dissent thought that:-
Unfortunately the Grand Chamber has missed a good opportunity to…. abandon the Powell principle for good or distinguish the present case from that old decision.
The Divisional Court in Parkinson were asked not to follow Lopes de Sousa, but unanimously agreed they should following established principle in R(Ullah) v. Special Adjudicator
. The upshot is that the Divisional Court by directly applying Lopes de Sousa, has firmly slammed the door shut on arguing for ‘system failures’ engaging Article 2 save in the most exceptional case of system “dysfunction” which denies a person emergency medical treatment despite being aware that the person’s life is at risk if the treatment is not given.