Article 2 and the provision of healthcare — Part 1

19 November 2020 by Shaheen Rahman

This three-part extended analysis will discuss the important recent authorities on article 2 ECHR in the context of the provision of healthcare and identify important trends in the development of the law in this area.

Where article 2 of the Convention is invoked to allege inadequate provision of healthcare by the state, recent Strasbourg and domestic authority suggest an increasingly restrictive approach.

An initially expansive approach

The 2015 Chamber decision of the Fourth Section of the Court in Lopes de Sousa Fernandes v Portugal [App No 56080/13] signalled the possibility of a more expansive application of article 2 in the healthcare context than hitherto adopted. 

The case concerned the death of the applicant’s husband following nasal polyp surgery performed in November 1997, when he was around 40 years old.  He developed bacterial meningitis and investigations revealed two duodenal ulcers, but he was discharged when his condition appeared to stabilise.  He deteriorated, developed infectious ulcerative colitis and was later readmitted.  He died of peritonitis and a perforated viscus in March 1998.       

It was held, by five votes to two, that there had been a substantive violation of the right to life protected by Article 2.  The court took the view that the lack of coordination between the ear, nose and throat department and the emergency unit revealed a deficiency in the public hospital service that deprived the patient of the possibility of accessing appropriate emergency care.   It also held, unanimously, that there had been a violation of Article 2 under its procedural limb.  Three sets of internal proceedings did not meet the requirement of promptness nor had they addressed satisfactorily the question of the possible causal link between the various illnesses suffered by the patient following his operation and his death. The court also found that the domestic courts had failed to establish with sufficient clarity whether the patient had been appropriately warned of the risks of surgery which included meningitis.

The joint dissenting opinion noted that the court’s position in previous authority had been that where a Contracting State had made adequate provision to ensure high professional standards among health professionals and the protection of lives, matters such as an error of judgment on the part of a health professional or negligent coordination amongst health professionals in the treatment of a particular patient would not be sufficient to call a Contracting State to account from the standpoint of its positive obligations under the Convention to protect life – see Powell v UK [App no 45305/99 (2000) 30 EHRR CD 152, ECHR 703.]   

Clarification of the scope of the substantive positive obligation

The dissenting view prevailed when the case proceeded to the Grand Chamber in 2017.  The court noted that it had frequently been called upon to rule on complaints alleging a violation of Article 2 of the Convention in a hospital setting and that the case presented “an opportunity to reaffirm and clarify the scope of the substantive positive obligations of States in such cases”.  It emphasised at the outset, however, that “different considerations arise in certain other contexts, in particular with regard to the medical treatment of persons deprived of their liberty or of particularly vulnerable persons under the care of the State, where the State has direct responsibility for the welfare of these individuals” [162-3].  We will return to such contexts in Part 2.

In this context, the court considered that the position that it had consistently emphasised in medical negligence cases was as per Powell above and that the court had only rarely found deficiencies in the regulatory framework of member States.  It noted the case of Arskaya v Ukraine [App 45076/05/05], where the applicant alleged that her son, who had been hospitalised for pneumonia and tuberculosis, had died as a result of medical negligence on account of inadequate health-care regulations concerning patients refusing to consent to treatment. The court, when finding a substantive violation of article 2, noted that the local regulations governing patients’ admission to intensive care were inadequate.  It further found that there was a lack of appropriate rules for establishing patients’ decision-making capacity, including their informed consent to treatment.  It considered therefore that the authorities had not taken sufficient steps to put in place a regulatory framework ensuring that the life of the applicant’s son was properly protected by law as required by article 2 of the Convention. [170]

The court usually reviewed the substance of medical negligence allegations in the context of the procedural limb of article 2, determining whether the mechanisms in place for shedding light on events were adequate. [172]

It also reiterated that it was not for the court to take a stand on issues such as the allocation of public funds and that it was a matter for Contracting States to consider and decide how their limited resources should be allocated.  [175]

Violations of the positive obligation under article 2 had also been found in a number of cases where there had been a denial of life saving emergency treatment, for example in Mehmet Şentürk and Bekir Şentürk v. Turkey [App no 13423/09] where a pregnant woman died after being refused life-saving treatment because she could not pay a deposit for the operation. [178]   

Likewise, a violation was found in Asiye Genç v. Turkey  [App no. 24109/07] where a new born baby died after being denied admission to hospital due to a lack of space and equipment.  The court held that the state had not sufficiently ensured the proper organisation and functioning of the public hospital system.  This was not a case of negligence or an error of judgment – no care had been offered at all.  [179]

In Elena Cojocaru v. Romania  [App no. 74114/12] a pregnant woman died after being refused an emergency C-section and being transferred to a hospital 150 km away, the baby dying two days later.  The circumstances were said to attest to a dysfunction in public hospital services [180].

The final case considered by the court was Aydoğdu v. Turkey [App no. 40448/06], where a baby died as a result of a combination of circumstances, including dysfunction of the health system in a particular region of the country.  The court considered that the authorities must have been aware at the time of events that there was a real risk to the lives of multiple patients due to a “chronic state of affairs that was common knowledge” yet had failed to take any of the steps that could reasonably have been expected to avert the risk, without any explanation as to why this would have placed a disproportionate burden upon them.  There was a causal link between the baby’s death and these structural problems, as well as individual negligence on the part of doctors. [181]

The court considered that, apart from the Elena Cojacaru case, which followed the line taken in the Chamber judgment, these cases distinguished between cases of “mere negligence” and “exceptional” cases where there had been a denial of immediate emergency care.  In the latter context, they noted the observations of the Government of the United Kingdom, which had been permitted to intervene in the proceedings, that the approach was akin to that in Osman v the United Kingdom, i.e. that the positive obligation arises when the State is required to undertake preventative operational measures to protect the life of an individual whose life is imminently at real risk.  The court did not consider that the dysfunction of the hospital services in these cases was to be characterised as ones of negligent coordination between hospital services or hospitals, but as a structural issue linked to deficiencies in the regulatory framework. [184]

Having considered the case law, the court reaffirmed the approach in Powell that in the context of alleged medical negligence, the substantive positive obligations on the state are limited to a duty to regulate, i.e. to put together an effective framework compelling all hospitals to adopt appropriate measures to protect patients’ lives, including supervision and enforcement.

It also set out the “very exceptional” circumstances in which the responsibility of the state under the substantive limb of article 2 may be engaged in the following way in cases of denial of treatment:

First, where a patient’s life is knowingly put at risk by denial of access to life-saving emergency treatment.  It does not extend to circumstances of deficient, incorrect or delayed treatment.

Second, where systemic or structural dysfunction in hospital services results in a patient being deprived of access to life-saving emergency treatment, which the authorities knew or ought to have known about and failed to take adequate steps to address, putting lives at risk.

It was acknowledged that it will not always be easy to draw the line between cases of “mere negligence” and “denial of access to life saving treatment”.  However, to fall into the latter category, a number of factors are “cumulatively” required:

First, the acts or omissions in such cases must go beyond mere error or negligence and constitute a denial of care in the full knowledge that the patient is at risk, in breach of professional obligations. 

Second, the dysfunction must be systemic or structural as opposed to comprising of individual incidents when things have gone wrong. 

Third, there must be a link between the dysfunction complained of and the harm the patient sustained.

Finally,  the dysfunction must have resulted from the failure of the state to meet its obligation to provide a regulatory framework in the broader sense of ensuring effective functioning of the regulatory framework . [185-196]

The circumstances of the instant case did not fall within any of the exceptional categories, notwithstanding the comments of some medical experts reviewing the care who alluded to serious systemic inadequacies.  A lack of coordination between hospital departments was not sufficient to engage the state’s responsibility under article 2 and there was accordingly no substantive breach.  The allegations were of medical negligence and in such cases the state’s substantive obligations were limited to the setting up of an adequate regulatory framework compelling hospitals to adopt appropriate measures for the protection of patient’s lives.  [197-205]

The court did, however, uphold the finding of a violation under the procedural limb of article 2 as there had been a failure to provide an adequate and timely response to the applicant by the domestic authorities. [206-238]

In part two, the immediate consequences of the Lopes de Souza decision and how it has been applied in domestic law will be analysed.

In part three, the decision in Maguire from earlier this year and the overall trend in the law will be explained.

Shaheen Rahman QC is a barrister at 1 Crown Office Row.