Where Article 2 of the Convention is invoked to allege inadequate provision of healthcare by the state, recent Strasbourg and domestic authorities suggest an increasingly restrictive approach.
An 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 authorities 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 below.
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 healthcare 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 .
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. 
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 .
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. 
Likewise, a violation was found in Asiye Genç v. Turkey [App no. 24109/07] where a newborn 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 .
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 .
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 .
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, who 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 .
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].
Criticism of the approach
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  EWHC 1501 (Admin). 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 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” .
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 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 extend 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, voluntarily and compulsorily 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 caselaw 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 [2019 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 demonstrated 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…” .
The two lines of Strasbourg authority considered in the two Fernandes cases are extensively cited by the Court of Appeal in Maguire. This 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 circumstances 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” thatgave 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.
This article also appeared on the UK Human Rights Blog.