No-deal Brexit and the right to life

5 September 2019 by Jim Duffy

One intervention that did not quite make it onto this week’s packed Parliamentary highlights reel came from Emily Thornberry MP.

The Shadow Foreign Secretary suggested that deaths caused by a lack of basic medicines following a No-deal Brexit would entitle coroners to reach a finding of ‘neglect’ in future inquests.  She added that it was her understanding the government had received legal advice to that effect.

Her remarks follow the leak two weeks ago of government documents prepared as part of ‘Operation Yellowhammer’. These reportedly predicted severe, extended delays to the supply of medicines in the event of a No-deal departure.

Neglect

Depending on the content of the warnings about medicines, Ms Thornberry may be right.  An argument that a deceased’s death has been caused or contributed to by neglect is usually levelled against a local police force that fails to provide basic medical attention to a detainee in need, or a hospital that does not act to counter a life-threatening illness in a patient. It is not commonly deployed against central government on the basis of a decision said to have denied basic medical attention to whole sections of the population.

Yet, in 2019, we find ourselves asking whether it could be. One of the most oft-quoted cases in the Coroner’s Court is R v North Humberside Coroner ex p Jamieson [1995] QB 1.  The Court of Appeal held that:

Neglect in this context means a gross failure to provide adequate nourishment or liquid, or provide or procure basic medical attention or shelter or warmth for someone in a dependent position (because of youth, age, illness or incarceration) who cannot provide it for himself. Failure to provide medical attention for a dependent person whose physical condition is such as to show that he obviously needs it may amount to neglect.

What amounts to a ‘gross failure’ and ‘basic medical attention’ tends to form the key battleground in inquests in which the possible conclusion of neglect is floated.

But if a No-deal Brexit at the end of October or later would have the consequences ascribed to it by some – blocking essential, life-saving supplies of medicine from reaching the jurisdiction and the patients who need them – then one can well see coroners being invited, quite rationally, to reach findings of neglect as a result.

The right to life

Yet it seems to me that an even more fundamental question arises: in the light of its health consequences, would a decision to leave the European Union without a deal violate the UK’s obligations under the European Convention on Human Rights? More fundamentally again – would it be unlawful as a matter of domestic law, pursuant to the Human Rights Act 1998?

Article 2 ECHR guarantees the right to life.  The case law of the Strasbourg Court has interpreted Article 2 to encompass not only the (limited) negative duty upon the state not to take life, but also positive duties to safeguard life in particular circumstances.

Again, the Coroner’s Court is accustomed to arguments that the Article 2 operational duty to investigate a death is engaged where the state was required to take measures which, judged reasonably, might have been expected to avoid the death.

Lopes de Sousa Fernandes

There is also a ‘systems’ duty, the scope of which was recently clarified by the European Court of Human Rights in the case of Lopes de Sousa Fernandes v Portugal.  As my colleague, Jeremy Hyam QC explained at the time, the Grand Chamber’s judgment meant that cases in which failures to provide medical care could amount to a breach of Article 2 were likely to be few and far between.

The Court in Lopes de Sousa Fernandes confirmed that, in the context of medical negligence, states’ substantive positive obligations relating to medical treatment were limited to a duty to regulate,

that is to say, a duty to put in place an effective regulatory framework compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients’ lives. (para 186)

The Grand Chamber set a high bar. Even where medical negligence was established, the Court would normally find a violation of Article 2 only if the relevant regulatory framework failed to ensure proper protection of the patient’s life:

The Court reaffirms that where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, matters such as an error of judgment on the part of a health professional or negligent coordination among health professionals in the treatment of a particular patient cannot be considered sufficient of themselves [to amount to an article 2 violation]. (para 187)

The Strasbourg Court added at para 188 that

the mere fact that the regulatory framework may be deficient in some respect is not sufficient in itself to raise an issue under Article 2 of the Convention. It must be shown to have operated to the patient’s detriment.

We have a National Health Service providing free healthcare. We have well-trained clinicians subject to the regulatory jurisdiction of bodies such as the General Medical Council as well as the courts. Isn’t that an adequate system, and one that would be the envy of other Council of Europe members?

Undoubtedly. But the potential fly in the ointment when it comes to a No-deal Brexit is found at paragraph 189:

It must, moreover, be emphasised that the State’s obligation to regulate must be understood in a broader sense which includes the duty to ensure the effective functioning of that regulatory framework.  The regulatory duties thus encompass necessary measures to ensure implementation, including supervision and enforcement.

On the basis of this broader understanding, the Grand Chamber explains at para 190 that in “very exceptional circumstances… the responsibility of the State under the substantive limb of Article 2 of the Convention may be engaged in respect of the acts and omissions of health-care providers.” 

It then sets out the two types of exceptional circumstances it has in mind:

1. A specific situation where an individual patient’s life is knowingly put in danger by denial of access to life-saving emergency treatment; and
2. 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 patients’ lives, including the life of the particular patient concerned, in danger.”

Lopes de Sousa Fernandes concerned hospital-based failures, but it would seem perverse to argue that failures at a macro, state level should not be viewed through the same lens.

It is the second set of exceptional circumstances that might be said to describe the consequences of a No-deal Brexit. This depends on what advice the government has been given and what information it has at its disposal about access to life-saving treatment in the days and weeks following such an outcome.

Breaking down the Grand Chamber’s second set of exceptional circumstances it could be argued that:

1. The disruption caused by a No-deal Brexit would amount to a systemic or structural dysfunction in a hitherto functional health system.
2. That dysfunction could that mean particular patients – or particular groups of patients suffering from particular illnesses – being deprived of access to life-saving emergency treatment.
3. Again, depending on the advice and information available to the government and/or the public, the State could be said to have actual or constructive knowledge of that risk.
4. By deciding to refuse to seek an extension to the Article 50 period – or, if need be, perhaps even by failing to revoke Article 50 in the face of an impending No-deal Brexit – it could be said that the State had failed to undertake the measures necessary to prevent that risk from materialising. This might be said to include taking all measures possible to at least delay a No-deal departure until the dysfunction in the system was avoided via effective contingency measures taken in advance.
5. The state would thereby put patients’ lives in danger.

A related issue might arise under Article 3 which, unlike Article 2, is not limited. Take people suffering from an illness that is not necessarily life threatening but that requires control or treatment via continuous, presently available medication. An interruption to that treatment would result in pain or suffering meeting the minimum level of severity necessary to engage Article 3. If the government knows or ought to know that a No-deal Brexit would effectively amount to cruel, inhuman or degrading treatment or punishment for such people, Article 3 might be said to bite also.

Those adopting the nonchalant approach to the Rule of Law currently in vogue may ask why that matters: So what if we breach international law?

Even if that were an acceptable way for a State to conduct its affairs, the consequences could sound also in domestic law. 

Section 6(1) of the Human Rights Act provides that it is unlawful for a public authority to act in a way that is incompatible with a Convention right. There are two exceptions. Subsection (1) does not apply to an act if:

(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently, or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with Convention rights, the authority was acting so as to give effect to or enforce those provisions.

At least while there remain alternatives, it would be difficult for the Prime Minister to argue that either exception applied where no primary legislation exists authorising or requiring a No-deal departure. Indeed, Parliament has made clear its opposition, about to be formalised in the Bill making its way through Parliament.

The Supreme Court in R (Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5 examined some of the limits upon the Prime Minister’s exercise of his or her prerogative powers to withdraw from treaties.

Such exercise must be “consistent with Parliamentary legislation”. It may be argued with some force that leaving the EU without a deal would at least be consistent with the European Union (Notification of Withdrawal) Act 2017, but if the argument above were accepted, it may not be consistent with the Human Rights Act.

Moreover, “ministers cannot frustrate the purpose of a statute or statutory provision, for example by emptying it of content or preventing its effectual operation” (para 51).

Much depends of course on just what the medical consequences of a No-deal Brexit would be. Any judicial review of a decision to leave the EU without a deal would have to consider whether the UK really did face a dysfunction in its healthcare system that would place lives at risk.

That might bring into sharp focus the full ramifications of the promise that we are leaving the EU on 31 October come what may, “do or die.”

Jim Duffy is a barrister at 1 Crown Office Row.