Article 2 and the provision of healthcare — Part 2
23 November 2020
This three-part extended analysis discusses the important recent authorities on article 2 ECHR in the context of the provision of healthcare. Part 1 examined the leading case of Lopes de Sousa. In this part, the way that this case has been addressed will be considered.
Criticism of the approach in Lopes de Sousa
It will be apparent that the requirements for a breach of the substantive obligation under article 2 set by the Grand Chamber overlap to some extent, and it is difficult to understand how all the factors identified in denial of treatment cases can be cumulatively required, as opposed to being alternative bases for a violation in some instances. On any view, however, the overall effect is extremely restrictive and has been criticised as such, not least in a powerfully worded dissenting judgment from Judge Pinto de Albuquerque:
For a State to avoid international-law responsibility under the Convention, it is not sufficient for health-care activities to be circumscribed by a proper legislative, administrative and regulatory framework and for a supervisory mechanism to oversee the implementation of this framework, as the Court held in Powell […] By evading the question of the specific protection of the individual right of each patient and instead protecting health professionals in an untouchable legal bubble, Powell renders the Convention protection illusory for patients. Powell seeks a Convention that is for the few, the health professionals and their insurance companies, not for the many, the patients. This must be rejected outright. 
This case could have been a tipping point. The Grand Chamber did not want it to be that way. I regret that, by rejecting a purposive and principled reading of the Convention, the Court did not deliver full justice 
Judge Serghides, also dissenting, but in less trenchant terms, regretted the Grand Chamber had “missed a good opportunity to follow Elena Cojocaru and to abandon the Powell principle for good or distinguish the present case from that old decision.” 
Domestic interpretation and impact on the procedural limb of article 2
The restrictive approach affirmed in Lopes de Sousa Fernandes was swiftly deployed in proceedings before the Divisional Court in R (Parkinson) v HM Coroner for Kent and Others  4 WLR 106. This was a judicial review of a Coroner’s decision that an inquest concerning the death of a patient at an Accident and Emergency department did not engage the investigative duty under the procedural limb of article 2. The Coroner considered that the patient was already in the advanced stages of dying by the time she arrived and no additional treatment could have been given to her to avoid her dying. He recorded a conclusion of natural causes.
The Divisional Court noted that the duty of enhanced investigation is parasitic upon an arguable breach of the substantive obligations in article 2. The Lopes de Sousa case was noted to be of great importance and a submission made by the claimant that it should not be followed was rejected.
Distilling the principles it considered now applied to medical cases, the court held that the “crucial distinction” was between “ordinary” cases of medical negligence, and cases of “systemic failure”. That distinction was also evident from the domestic caselaw. It was noted, for instance that in R (Humberstone) v Legal Services Commission  EWCA Civ 1479;  1 WLR 1460 Smith LJ had cautioned that it would be necessary in determining whether an inquest engages article 2 for “care to be taken that allegations of individual negligence are not dressed up as systemic failures” 
In the instant case, the court rejected the submission that because the patient lacked capacity, her situation was analogous to one of compulsory detention, in respect of which it was acknowledged that different considerations would apply. It was noted that there will frequently be patients who have capacity issues in the A&E department and article 2 inquests are not required in all such cases.
The court ultimately rejected the submission that defective triage and resuscitation policies at the hospital amounted to arguable breaches of the substantive obligations in article 2. It followed that there was no enhanced duty of investigation under its procedural limb either .
Vulnerable patients under the care of the state
It was noted in Fernandes and Parkinson that the position for those detained or otherwise under the care of the state is different. It gives rise to greater substantive obligations under article 2. The position in has developed in the following way.
In Keenan v The United Kingdom [App No 27229/95], a 2001 case concerning the suicide of a 28 year old prisoner, the court noted that it had already emphasised that that persons in custody are in a vulnerable position. It is incumbent on the state to account for any injuries suffered in custody, particularly where a person dies. A state’s positive obligation to protect life could include taking reasonable steps to prevent self-harm in cases where the authorities knew or ought to have known that a person in detention posed a real and immediate risk of suicide.
In Savage v South Essex Partnership NHS Foundation  1AC 681 the House of Lords considered the case of a woman who committed suicide whilst compulsorily detained under section 3 of the Mental Health Act 1983. It was held that her position was analogous to that of a prisoner and the operational obligation must extent to such patients when they were at a real and immediate risk of suicide. The Supreme Court subsequently held in Rabone v Pennine Care NHS Trust  UKSC 2 that the operational duty to prevent an informal psychiatric patient at a real and immediate risk of committing suicide from doing so when wrongly permitted home leave had been violated. Whilst not compulsorily detained under the MHA she was effectively in the same position and the authorities could and should have exercised its powers under the Act had she sought to leave hospital.
Accordingly, voluntary and compulsory detained patients have been viewed in the domestic caselaw as being essentially in the same position for the purposes of the substantive obligations under article 2, with the operational duty to take preventative steps arising in cases where a real and immediate risk to life should be appreciated.
However, the position is rather more nuanced in the Strasbourg case law and has developed at a different rate. Whether the operational duty extended to a voluntary patients was not finally determined until the case of Fernandes de Oliveira v Portugal  ECHT 106.
As in the Lopes de Sousa Fernandes case, the matter was first considered by a Chamber of the Fourth Section of the Court, which unanimously found a violation of the substantive and procedural aspects of article 2. It considered that the emerging trend of providing treatment on the basis of the principle of least restriction under an open-door regime did not exempt a state from its obligation to protect mentally ill inpatients from the risk they posed to themselves. In this case staff should have adopted greater safeguards to prevent the patient, who had previously attempted suicide, from leaving the hospital grounds.
Again, the Grand Chamber reversed the decision as regards the substantive violation. Whilst confirming that the operational duty does extend to voluntary psychiatric patients, it emphasised that the specific measures required to protect a patient from a real and immediate risk of suicide will often differ depending on whether the patient is voluntarily or involuntarily hospitalised. It considered that the court could apply a stricter standard of scrutiny in the case of an involuntary patient. Moreover, it would bear in mind the choices that needed to be made in terms of priorities and resources in providing public healthcare [124-5].
In the instant case, it concluded that whilst the risk of suicide could not be excluded in inpatients suffering from multiple conditions, the immediacy of the risk would vary. The monitoring regime was increased or decreased depending on the patient’s changing mental state. The patient had not demonstrate suicidal behaviour in the immediate period before his death. The court also took into account expert evidence from experts that complete prevention of suicide in such patients was “an impossible task” and stated that it “approached the question of risk with a view to assessing whether it is both real and immediate and notes that the positive obligation incumbent on the State must be interpreted in a way which does not impose and impossible or disproportionate burden on the authorities”. It concluded that it had not been established that there was a real and immediate risk to life in this case. 
Once again, there was furious dissent from Judge Pinto, joined by Judge Harutyunyan, asserting that the majority had made findings on the basis of a series of errors of fact. As to the law:
the majority’s opinion pursues the Lopes de Sousa Fernandes ideologically charged minimalist approach to the State’s positive obligations in the sphere of health care to its limits, this time regarding the particularly vulnerable category of psychiatric inpatients under State control. The effect is that of downgrading the level of the Convention protection to an inadmissible level of State inertia. 
The most strongly worded criticism was reserved for the “hands-off” approach and differentiation between voluntary and involuntary patients:
The right to life prevails over the right to liberty, especially when the psychopathological condition of the individual limits his or her capacity for self-determination. It is nothing but pure hypocrisy to argue that the State should leave vulnerable suicidal inpatients in State-run psychiatric hospitals free to put an end to their lives merely in order to respect their right to freedom. At the end of the day, what really drives the majority is not the concern for more or less freedom of psychiatric inpatients interned in public hospitals, but the strict financial interest in safeguarding the hospital authorities from legal challenges to “excessively restrictive measures” while “bearing in mind the operational choices which must be made in terms of priorities and resources in providing public healthcare and certain other public services”. Ultimately, this reflects a hidden social-welfare disengagement policy, which aims at the maximum commodification of health-care services and above all at the protection of health professionals…
In part three, the discussion will move to developments in 2020, with the decision in Maguire from earlier this year and the overall trend in the law being explained.
Shaheen Rahman QC is a barrister at 1 Crown Office Row.