Coroner’s Inquests and Article 2 — Fernandes endorsed by the UK Courts

The Queen (on the application of Gerard Joseph Parkinson) v HM Coroner for Kent (Defendant) and Dartford and Gravesham NHS Trust (First Interested Party) and Sameer Hijazi (Second Interested Party)

Introduction

On 15 June 2018, the High Court gave judgment in a case that has clarified the UK position regarding the applicability of Article 2 of the European Convention on Human Rights (‘ECHR’) for clinical inquests. The court endorsed the European Court of Human Rights decision in Lopes de Sousa Fernandes v Portugal [2017] which recently ruled on similar principles. In endorsing the ECHR decision, the High Court also helpfully summarised the relevant principles found in the authorities on Article 2 in medical cases, which will be of much use to inquest practitioners and to healthcare authorities alike.

Facts

The background facts were that Mr Parkinson (the claimant) attended the inquest of his mother held on 9-27 May 2016 before HM Coroner for Kent (the defendant). The circumstances of Mrs Parkinson’s death were that she was brought to Darent Valley Hospital (Dartford and Gravesham NHS Trust, First Interested Party) by ambulance on 9 January 2011. She was seen by Dr Hijazi (Second Interested Party) who recognised that she had agonal breathing and was dying. She was given IV fluids, antibiotics and gelofusine. However, due to her condition, it was decided not to perform cardiopulmonary resuscitation (CPR). Mr Parkinson was angry about this and the evidence at the inquest found he threatened Dr Hijazi and tried to attempt mouth to mouth resuscitation on his mother himself, despite the requests of hospital staff for him not to do this. Mrs Parkinson died on the same date.

Conclusion of inquest

The coroner recorded a short-form conclusion of “natural causes”. In answer to the question ‘how’ in box 3 of the Record of Inquest, he included as follows:

“On arrival in A&E, she was assessed and found to be dying. Her son attempted to perform mouth to mouth resus, although advised against this by A&E staff. She deteriorated rapidly and died soon after arriving.”

In his findings, the coroner did not accept that there was any failure to diagnose and treat Mrs Parkinson, in the circumstances. He was satisfied that any additional treatment that could have been provided to her in the short time she was at the hospital would have been ineffective, given her advanced stage of dying at the time of her arrival at hospital.

Judicial review

Mr Parkinson sought judicial review of the coroner’s decision on a number of grounds, including that the inquest should have been held under Article 2 of the ECHR (‘Right to life’). He also claimed that the medical cause of death was irrational and a short-form conclusion of “natural causes” did not sufficiently discharge the coroner’s duties under the Coroners and Justice Act 2009.

The court examined the relevant case law on the applicability of Article 2 in inquests and helpfully recited the principles found in the main authorities on this issue, including R (Humberstone) v Legal Services Commission [2010]; Savage v South Essex Partnership NHS Foundation Trust [2008]; Osman v United Kingdom 29 EHRR 245 and Lopes de Sousa Fernandes v Portugal [2017].

Lopes de Sousa Fernandes v Portugal [2017]

The relatively recent European Court of Human Rights decision of Fernandes found as follows in relation to the applicability of Article 2 in clinical inquests:

“In cases where allegations of medical negligence were made in the context of the treatment of a patient, the court has consistently emphasised 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 are not sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life.”

The court said there were “very exceptional circumstances”  in which the responsibility of the state under the substantive limb of Article 2 may be engaged in respect of the acts and omissions of healthcare providers and:

“concerns a specific situation where an individual’s life is knowingly put in danger by denial of access to life-saving emergency treatment… It does not extend to circumstances where a patient is considered to have received deficient, incorrect or delayed treatment.”

The other circumstance in which the court found it could be argued to be engaged is if there was evidence of risk of a systemic failure in hospital authorities which resulted in a deprivation of life-saving treatment that the authorities knew or ought to have known about and failed to take measures to prevent the risk from materialising and putting the patient’s life in danger.

It was reaffirmed by the court however that acts or omissions must go beyond a mere error or medical negligence and if a systemic issue, the dysfunction must be objectively and genuinely identifiable as systemic, not an individual error. It was found in Fernandes that an alleged error in diagnosis leading to a delay in the administration of proper treatment, or an alleged delay in performing a particular medical intervention, cannot in themselves constitute a denial of healthcare.

Decision

In Parkinson, given the issue complained of was in respect of the actions of one doctor, counsel for the claimant urged the court to depart from the Fernandes decision, arguing that it was not binding on the court. The court refused this application and stated it found no exceptional circumstances to depart from the “very recent and authoritative statement of the relevant principles set out by the European Court in Fernandes.”

The court went on to provide a very helpful summary of the relevant principles found in the authorities on Article 2 in medical cases. These are set out below (in summary) as follows:

• Article 2 imposes both substantive positive obligations on the state and procedural obligations. 

• The primary substantive positive obligation is to have in place a regulatory framework compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients' lives. 

• The primary procedural obligation is to have a system of law in place, whether criminal or civil, by which individual failures can be the subject of an appropriate remedy. In the law of England and Wales that is achieved by having a criminal justice system, which can in principle hold to account a healthcare professional who causes a patient's death by gross negligence; and a civil justice system, which makes available a possible civil claim for negligence. (In Parkinson, a civil claim had been issued). 

• The enhanced duty of investigation, which falls upon the state itself to initiate an effective and independent investigation, will only arise in medical cases in limited circumstances, where there is an arguable breach of the state's own substantive obligations under Article 2. 

• Where the 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 are not sufficient of themselves to call the state to account under Article 2. 

• However, there may be exceptional cases that go beyond mere error or medical negligence, in which medical staff, in breach of their professional obligations, fail to provide emergency medical treatment despite being fully aware that a person's life would be put at risk if that treatment is not given. In such a case the failure will result from a dysfunction in the hospital's services and this will be a structural issue linked to the deficiencies in the regulatory framework. 

• 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. 

• The principles in Fernandes, are not inconsistent with what the UK courts have said under the Human Rights Act. Rather the distinction between a systemic failure and ordinary negligence cases is one that is also to be found in the domestic case law, for example in Savage and Rabone. 

• Care should be taken to ensure that allegations of what are in truth allegations of “individual negligence” are not “dressed up as systemic failures”; and that the person best placed to decide whether Article 2 is engaged is the coroner who conducts the inquest (as per Smith LJ in Humberstone v Legal Services Commission [2011] 1 WLR 1460).

Commentary

This case is an important reaffirmation of the approach of the European Court of Human Rights in relation to the applicability of Article 2 for inquests. The original Fernandes decision (prior to appeal) had, for a time, cast a shadow of doubt over whether the issue of ‘mere negligence’ of a healthcare worker could constitute an arguable breach, such to engage Article 2 for inquests. Some observers considered it had the potential to widen the scope of Article 2 to incorporate errors of judgment on the part of health professionals, whereas others consider the decision to be obiter in relation to this issue.

The appeal in Fernandes reaffirmed what was thought to be the case by many, which is that individual failures of healthcare workers will not usually engage Article 2, unless this is shown to be part of a wider systemic issue that arguably contributed to the death. The High Court’s endorsement of Fernandes in Parkinson has therefore reaffirmed the landscape regarding the applicability of Article 2.

Inquest practitioners will find this decision particularly helpful when it comes to preparing submissions on the issue of Article 2 before coroners at pre-inquest review hearings (when this is often decided) and at substantive inquests, where the issue remains open to be decided in accordance with the evidence as it unfolds.