Article 2 and the provision of healthcare — Part 3
24 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 and part 2 considered how it has been interpreted and applied. In this final part, the latest decision of the Court of Appeal this year will be analysed and the overall trend in the law explained.
The two lines of Strasbourg authority considered in the two Fernandes cases are extensively cited by the Court of Appeal in the decision in Maguire. This case concerned the death of a patient with Down’s syndrome, learning difficulties and limited mobility who had lived in a residential care home and was subject to deprivation of liberty safeguards. In the days prior to her death she had been ill but had not cooperated with attempts to take her to hospital and the decision was taken to care for her at the home overnight. She deteriorated and was admitted to hospital where she later died. The cause was a perforated gastric ulcer, peritonitis and pneumonia.
The claimant argued that the circumstances of the death engaged the procedural obligation to hold an enhanced inquest under article 2. Whilst agreeing initially, and holding a jury inquest, the Coroner subsequently revisited his decision in light of the Divisional Court’s judgment in Parkinson. Having heard the evidence, he did not consider there was any arguable breach of the substantive operational duty under article 2 and hence the procedural duty was not triggered. A conclusion of natural causes was recorded with a short narrative description of events.
As the Coroner did not consider that the procedural obligation under article 2 was triggered, the jury were not asked to express a view on the wider circumstances in which the deceased came by her death or whether her life-threatening condition should have been appreciated by those caring for her and measures taken to reduce the risk to her life.
The claimant sought judicial review of the Coroner’s decision which was dismissed by the Divisional Court, who noted that:
the touchstone for state responsibility has remained constant: it is whether the circumstance of the case are such as to call a state to account: Rabone, para 19 citing Powell. In the absence of either systemic dysfunction arising from a regulatory failure or a relevant assumption of responsibility the state will not be held accountable under article 2. 
On appeal, the Court of Appeal was referred to a Chamber decision of the Fifth section of the Strasbourg Court, Dumpe v Latvia [App No 71506/13]. This concerned the factually similar death of a man who suffered from Down’s Syndrome and epilepsy and was in long term care. He was found to have been suffering from malnourishment, hepatitis B, organ dystrophy and extensive psoriasis. The applicant alleged a violation of article 2 due to inadequate healthcare provision, but it was held that the applicant had not exhausted her domestic remedies as civil proceedings remained open to her.
The Court of Appeal also considered the case of R (Tyrell) v HM Coroner for County Durham and Darlington  EWHC 1892 in which the claimant argued that the death of a long term prisoner from cancer was sufficient to trigger the procedural duty under article 2 to hold an enhanced inquest. That submission was rejected – there was no doubt that the death was from natural causes and thus there was no arguable breach of the state’s substantive obligations under article 2, or need for an article 2 inquest despite the fact that the deceased was a serving prisoner.
The court noted that the Strasbourg authorities on care homes in which substantive violations of article 2 had been found were in circumstances where the authorities were aware of appalling conditions and an increased mortality rate and did not act. Further that, as per Tyrell, the procedural obligation did not arise in cases of deaths in custody from natural causes. Accordingly, it posited that “the article 2 substantive obligation is tailored to harms from which the authorities have a responsibility to protect those under its care”. An inadequate response to isolated medical emergencies in a care home did not support the imposition of the duty in the same way as the abuse cases. Dumpe was a care home case in which no violation of article 2 had been found, despite the alleged deficient provision of healthcare. Had the death resulted from neglect or abuse, it would have been different. But it was a “medical case” and the procedural requirement under article 2 was satisfied by the existence of an effective judicial system to determine liability. [73-5]
Ultimately the court concluded that the operational duty was not owed to all those in a vulnerable position in care homes, placing strong reliance upon its view that the circumstances were closely analogous to those in Dumpe, despite the fact that this was not a Grand Chamber judgment. There was no consistent contrary jurisprudence suggesting that those in an analogous position were owed the operational duty when seeking medical care. Thus the procedural obligation was not triggered. [96-99]
Neither was the court satisfied that the circumstances were analogous to those of a psychiatric patient who is in hospital to guard against the risk of suicide. The deceased was in a residential care home because she could not live alone or with her family. She was not there for medical treatment, which was provided by the NHS in the usual way. Had she been able to live at home with support, her position would have been no different in this respect. 
The court did not determine whether there had been a real and immediate risk of death that medical professionals knew or ought to have known about, but noted that the Fernandes de Oliveira case suggested a “relatively light touch” would be required and it was doubtful that the two GPs and paramedics ought to have been aware of a high risk of mortality.
The Court of Appeal also rejected the claimant’s submission that if this was a “medical case” as defined by Lopes de Sousa, it fell within one of the “very exceptional circumstances” that gave rise to an arguable breach of the operational duty due to denial of treatment. The deceased’s life was not knowingly put in danger by a denial of life-saving treatment as those who assessed her did not believe her to be at risk. There was no systemic or structural dysfunction which resulted in the denial of life-saving treatment. The evidence did not suggest any widespread difficulty in taking individuals with learning disabilities or elderly dementia patients to hospital when required. The alleged absence of a plan to get the deceased to hospital and inadequacy of guidance on how to do so did not come close to what was required in this respect.
Of course, the Convention is a living instrument and the expansive approach to article 2 in the healthcare context advocated by Judge Pinto de Albuquerque may one day prevail. Moreover, systemic dysfunction and regulatory failures may still result in a violation of article 2 in cases of medical negligence, for instance in cases that are analogous to care home cases where risks to life are known about but not acted upon, in addition to the more extreme scenarios of knowing denial of life saving treatment and Rabone type cases.
However, whilst authorities such as Parkinson suggest it will not always be easy to draw the line between medical cases of “mere negligence” and those where the operational duty under article 2 and parasitical procedural duty will apply, the courts have made relatively short work of that task in recent cases. Following Maguire, it is difficult to avoid the conclusion that Rabone may have been the high water mark in that particular context, or that subsequent Strasbourg authority has placed the operation of article 2 in the healthcare context more generally under severe constraints.
Shaheen Rahman QC is a barrister at 1 Crown Office Row.