There are a number of clinical negligence claims against the NHS that are based upon, or supported by, alleged breaches of the Human Rights Act 1998 ("HRA"). The acts and omissions of those employed by the State in the field of healthcare may engage the European Convention on Human Rights ("ECHR"). Section 7 HRA has a relatively wide definition of who can be a `victim' for the purposes of launching a HRA claim. Moreover, causation under the ECHR is regarded as a lower obstacle to surmount than in the common law.
Lord Roger summed up the general position under the HRA back in Savage v South Essex Partnership NHS Foundation Trust  UKHL 74: "... the duty to protect the lives of patients requires health authorities the hospitals for which they are responsible employ competent staff and that they are trained to a high professional standard. In addition, the authorities must ensure that the hospitals adopt systems of work which will protect the lives of patients. Failure to perform these general obligations may result in a violation of Article 2." We will return to what systemic failure means later in this article.
First, we note that the Covid-19 crisis is leading to potential innovative ways that the HRA is being deployed in this field:
Any potential right to specific treatment, even experimental treatment, is being analysed more in the current climate. There are few authorities from Strasbourg on this subject and those that exist usually support the view that it is unlikely that the State will be seen to breach its Convention obligations by denying experimental treatment: Hristov v Bulgaria (2012) and Durisotto v Italy (2014). Such claims would usually be more successful only if it is shown that there is in fact some particular private life characteristic that is being infringed or discriminated against when the State denies treatment.
Medical Law Briefing September 2020
Nevertheless, although there is plainly no right to health, there is some support for the view that a wholly ineffective or inaccessible health system, could lead to a finding against the State. Where there is a systemic failure to diagnose, with unjustified removals and failures to take into account matters such as mental disability, there could be liability under the Convention: Centre of Legal Resources v Romania (2014 & 2016).
There is a long line of authority under Article 8 ECHR concerning use of confidential information, which has come under greater scrutiny recently during arguments about information held for the purposes of tracking and tracing those with Covid-19. Naturally, the case-law is against abuse of private information but does allow a margin of appreciation pursuant to Article 8(2) of the ECHR, providing that there is a legitimate aim: LH v Latvia (2014) and PT v Moldova (2020).
It is of course to be hoped that there will soon be an effective vaccination against Covid-19. Some, however, will be concerned about potential side-effects of a vaccine and/or could have a religious objection to the same. We have seen a number of challenges in the UK to forced medical intervention, as there have been in Strasbourg. Therefore, any compulsory vaccination programme initiated by the State could itself be the subject of a challenge: Vavricka v Czech Republic (2019).
Exposure to hazards can also be a violation of the ECHR, whether Article 2 or 3 or 8. Much of the jurisprudence from the ECtHR centres around what information was given to employees and what risks were known about. There are cases ranging from asbestos to environmental waste: Vilnes v Norway (2013) and Brincat v Malta (2014). Obviously the issue of exposure of employees to Covid-19 could well soon form the basis of future litigation in the UK.
Naturally, the common law provides a remedy for medical negligence in this country, and normally involves actions against the local body or Trust concerned, hence the Convention has hitherto usually been of greater import here where the investigation into clinical negligence by the State has purportedly beendeficient and/or there has been alleged systemic failure.
Article 2 & DNRs
Accordingly, we now return to systemic failure and look specifically at the positive obligations under Article 2 ECHR and R (on the application of Antonia Iroko) (Claimant) v (1) Senior Coroner for Inner London South (2) HM Assistant Coroner For Inner London South (Defendant) & Lewisham & Greenwich NHS Trust (Interested Party) (2020).
There have been several key judgments this year concerning Article 2 and medical mishaps in inquests. Following the High Court's recent decision in R (Maguire) v HM Senior Coroner for Blackpool and Fylde  EWCA Civ 738, a further judgment has emerged considering Article 2 in the context of Do Not Resuscitate Directions ("DNR Directions").
Iroko was a claim concerning the death of Mrs Iroko, who died following a cardiac arrest on the 13th December 2017 at Queen Elizabeth Hospital, Woolwich ("QEH Woolwich"), for which the Interested Party had responsibility. Her death was reported to the First Defendant ("the Senior Coroner") and an inquest was subsequently opened. As a preliminary ruling, the Senior Coroner held that there was no evidence that any failure or dysfunction in the treatment of Mrs Iroko was systemic, or due to a failure to put in place a regulatory framework. As such, Article 2 was not deemed to be engaged. When the inquest was heard, the Assistant Coroner hearing the inquest declined to make a finding of neglect and did not make a Prevention of Future Death Report ("PFD Report").
The Claimant, Mrs Iroko's daughter, averred that there were three errors of law in the inquest, namely that: the Senior Coroner erred in deciding that Article 2 was not engaged; the Assistant Coroner failed to explore neglect; and, the Assistant Coroner failed to make a Prevention of Future Death Report ("PFD Report"). This article seeks to set out how the High Court reached their decision. It is another important case for practitioners to have to hand, particularly when assessing or dealing with questions of engagement of Article 2.
Medical Law Briefing September 2020
further cardiac arrest. They averred that, in any event,
it would have been contrary to Mrs Iroko's religious
On the 10th December 2017, Mrs Iroko attended the beliefs and the family would not have agreed to such a
Urgent Care Centre at Queen Mary's Hospital. She
PROFESSIONAL NEGLIGENCEpresented with a history of vomiting, abdominal
bloating, and pain, that had arisen over the previous
At the inquest, Dr Foster explained that he had
12-hour period. Following an examination, a working
informed the family that he did not think it was
diagnosis of gastroenteritis was made. Before she was appropriate to perform further CPR in the light of her
discharged, Mrs Iroko was advised to drink liquids and clinical picture. When he returned to Mrs Iroko, she had
take Dioralyte. She was told that if any signs of
suffered a further cardiac arrest and his colleagues had
dehydration developed or her condition worsened, she restarted CPR. Dr Foster explained in his evidence that
should attend her local A&E Department.
he informed the team that he had spoken to her family
and he did not think it would be appropriate for CPR to
On the 12th December 2017, Mrs Iroko attended QEH continue. Consequently, CPR was stopped and Mrs
Woolwich. She complained of vomiting, abdominal
Iroko was declared deceased.
bloating, and pain, as well as an inability to keep fluid
down. She had only passed urine twice in the previous The decision of the High Court
12 hours. Other than her blood pressure being high,
Mrs Iroko's vital signs were normal.
The matter came before LJ Hickinbottom, Mrs Justice
Whipple, and the Chief Coroner of England and Wales,
Mrs Iroko was referred to A&E. Her vital signs were
HHJ Lucraft QC, with LJ Hickinbottom giving the lead
stable, except for her heart rate, which was raised.
Antibiotics were prescribed. Mrs Iroko was moved
to a chair in the Clinical Diagnostic Unit ("CDU") when The Court first looked at Article 2, setting out the
she was stable. However, she continued to complain of substantive positive obligations it imposes upon the
abdominal pain and was consequently prescribed
state not to take life without justification and the
Oramorph. During her period in the chair in CDU, the consequential procedural obligation to establish a
Claimant recalled that her mother did not eat, drink, get framework of laws, procedures and means of
up from her chair, or urinate. However, this was
enforcement to protect life. As many practitioners
contradicted by evidence of an A&E Consultant, who
know, the procedural obligation requires the state to
stated that he recalled Mrs Iroko both drinking from a initiate an investigation into a death for which it may
plastic cup and walking independently. Mrs Iroko
bear responsibility (Middleton ).
was later discharged with a diagnosis of gastroenteritis.
It was noted in her medical records that a Do Not
The Court referred to the recent judgment of Maguire,
Resuscitate CPR had not been agree.
as well as that of Lopes de Sousa Fernandes v Portugal
(ECtHR Application No 56080/13 (2018), both of which
Unfortunately, the following evening, Mrs Iroko went discussed the application of Article 2 ECHR in medical
into a cardiac arrest. 40 minutes after her arrest, her
mishap cases. By way of a reminder, LJ Hickinbottom
pulse returned, but she could not breathe
reminded the Court that Fernandes confirmed that in
independently. She was transported back to QEH
cases involving alleged medical negligence, a state may
Woolwich, where she was taken to the Resuscitation
be responsible under the substantive limb of Article 2 if
Room. Dr Foster was in charge of the Resuscitation
there were "very exceptional circumstances". Such
Team. Dr Foster considered a further cardiac arrest was circumstances may arise when a patient's life is
imminent and decided to speak to Mrs Iroko's
knowingly put in danger by denial of access to life-
relatives. There was considerable dispute as to what
saving emergency treatment, however that does not
was said between Dr Foster and Mrs Iroko's family. Mrs extend to circumstances where a patient has received
Iroko's family denied that they were informed that
deficient, incorrect or delayed treatment. Moreover, if a
CPR would not be attempted if she would suffer a
systemic or structural dysfunction in hospital services
Medical Law Briefing September 2020
results in a patient being deprived of access to lifesaving treatment and the authorities knew or ought to have known about the risk and failed to undertake the necessary measures to prevent the risk from materialising, therefore putting patients' lives in danger, Article 2 may be engaged. To determine whether the exceptional circumstances were satisfied, the Court had to look at each of the four factors given in Fernandes:
Did the acts/omissions of the health care provider go beyond mere error or medical negligence, in so far as the health care professionals, in breach of their professional obligations, denied a patient emergency medical treatment, despite being fully aware that the person's life is at risk if the treatment was not given?
Was the dysfunction objectively and genuinely identifiable as systemic or structural in order to be attributable to the state authorities?
there had been a false claim that the DNR Direction had been discussed with Mrs Iroko's family. As such, the Claimant averred that the fact the direction was acted upon met the threshold of an act which went beyond mere error or negligence and denied Mrs Iroko treatment knowing that her life would be at risk if that treatment was not given.
The Court did not accept that the Coroners erred in not holding an Article 2 inquest, considering that the DNR Direction was not a material circumstance. LJ Hickinbottom said that the he did not consider that Dr Foster had ever said that Mrs Iroko's family had expressly agreed to the DNR Direction. He simply said that he did not consider it would be clinically appropriate in the light of her clinical condition. Upon returning to the Resuscitation Room, it became apparent that Mrs Iroko had suffered a second cardiac arrest and a decision was made by the team performing CPR to cease further attempts. In any event, the Court was satisfied that there had been no systemic failure to prompt an Article 2 inquest.
Was there a link between the dysfunction complained of and the harm which the patient sustained?
Did the dysfunction result from the failure of the state to meet its obligations to provide a regulatory framework?
Both the Senior Coroner and Assistant Coroner had considered whether the procedural obligation of Article 2 applied. The Senior Coroner had considered that there were no grounds for there being an arguable breach of Article 2, however invited further submissions on the point from the family. None were received. Consequently, the Senior Coroner ruled that the inquest would be held as a Jamieson inquest. In addition, at the inquest, the Assistant Coroner similarly confirmed her view that this was not an Article 2 inquest and no submissions were made on the issue during the hearing.
The key issue raised before the High Court was that the Trust's policy on DNR Directions stated that the views of relatives and carers must be obtained in cases where a patient lacks capacity. In this case, it was argued that
Turning to neglect, the Court noted that this issue was raised by Counsel for the family at the inquest, specifically in relation to: an alleged failure to monitor urine output, repeat venous gas analysis, and note and document that she had previous abdominal operations; and the decision to discharge Mrs Iroko on the 12th December 2017. The Assistant Coroner had declined to make a finding of neglect. However, she had expert evidence before her which considered that Mrs Iroko ought not to have been discharged on the 12th December 2017 without an abdominal x-ray. The Court reminded itself that neglect meant far more than even gross negligence: it meant a gross failure to provide basic medical attention. LJ Hickinbottom did not consider that there was any gross failure to provide basic medical attention to Mrs Iroko, and that the case fell short of that high threshold.
Finally, the Court dealt with the issue of the PFD Report. The Court considered that the duty to issue a PFD Report was highly fact-specific and involved an exercise of judgment by a coroner. Given the above conclusions, the Assistant Coroner did not err in not issuing a PFD Report.
Medical Law Briefing September 2020
This case yet again emphasises the high hurdle parties face when seeking to persuade a Court that Article 2 is engaged in a death resulting from a medical mishap. The Court itself considered that, in the light of the decisions of Fernandes and Maguire, the question as to whether Article 2 is engaged in such cases is now "wellsettled". Practitioners should bear the jurisprudence in mind before seeking to challenge whether an inquest should remain as a Jamieson inquest.
Missed Meningitis: clinical examination performed without accounting for broader medical context fell below reasonable standard
Consider the following circumstances underpinning a claim in clinical negligence: a fifteen-month-old child is taken to a GP; the GP examines her, suspects meningitis and sends her under blue lights to hospital; on examination in hospital, however, tonsillitis is diagnosed and the child is discharged without a lumbar puncture; days later she is readmitted, a lumbar puncture is performed and a serious bacterial infection is identified; she suffers a stroke as a result of a bacterial meningitis leaving her with a permanent neurological defect.
At first glance it looks as though establishing a breach of duty ought not to present significant difficulty. If the GP was in a position to suspect meningitis, which was the ultimate diagnosis, while the doctors in the hospital missed it, an instinctive prediction might be that this was a case which would never reach trial (at least on liability). As Mr Justice Johnson said, however, when these facts came before him in the case of SC (by her mother and litigation friend AC) v University Hospital Southampton NHS Foundation Trust  EWHC 1610 (QB) last month, "it is much more complicated than that".
Confounding the simplicity of the above summary, meningitis in children of under three months is
notoriously difficult to diagnose through clinical examination. Symptoms are often generalised, and consistent with many pathologies. There are certain `classic' markers of a serious bacterial infection, being fever, neck rigidity, photophobia, non-blanching rash, headache and vomiting, but especially in infants and toddlers these features may be absent or (for reasons of communication) difficult to interpret.
In the claimant's case, when she was initially seen by a GP, he noted her to have vomited three times that day and to have a temperature of 40.1C; she was lethargic and floppy with a `glazed look'; and she showed signs of possible photophobia. Owing to his suspicion of meningitis (or a meningococcal septicaemia) he administered an intramuscular injection of antibiotics and instructed that the claimant should be given Calpol before arranging an ambulance to take her to hospital.
In the ambulance the claimant was said to be almost lifeless, at one point feared dead, but by the time of reaching the hospital she was described as being `alert but very quiet'; she continued to have a temperature of above 40C; oral paracetamol and ibuprofen were given. On examination by a Senior House Officer ("SHO"), who clearly had the GP's impression in mind, it was noted that the claimant was alert, that she had no rash and had no neck stiffness (i.e. some of the typical signs of meningitis were not clinically observed). Instead, the SHO noted that the claimant had large inflamed red tonsils with a few dots of exudate and her impression was that the claimant had tonsillitis and that meningitis was `unlikely', though not formally ruled out. She admitted the claimant for observation and fluids.
Four hours later, the claimant was seen by a consultant. The consultant was in his first six months working as such, but as Mr Justice Johnson pointed out, the objective standard of reasonableness against which a doctor is compared in such claims is that of a reasonably competent practitioner at the relevant seniority irrespective of experience at that level. When observed by the consultant the claimant was again noted to be alert and walking around the play area, her temperature had come down to around 37C, she had no neck stiffness, and had large inflamed pussy tonsils. His impression, like that of the SHO, was therefore of tonsillitis. Unlike the SHO, however, he
Medical Law Briefing September 2020
did not expressly note the possibility of another diagnosis (in particular, a diagnosis of a serious bacterial infection) and he discharged the claimant with a review scheduled for the next day.
The following day, he noted her as being `better' and his impression was of a resolving viral illness. He discharged her with no follow up. It was not until 4 days later after a further GP referral to hospital that a lumbar puncture was eventually performed and a pneumococcus was found.
What had happened? Had the Claimant had a serious bacteria infection when she was first seen by the GP or had it come later? If she had an infection, how and why had this been excluded by the SHO and the consultant? Was viral tonsillitis a misdiagnosis? Mr Justice Johnson, after considering expert evidence from consultant paediatricians and microbiologists, made findings of fact that the claimant did in fact have viral tonsillitis and that this had been missed by the GP (or had significantly developed in the time between GP and hospital examinations), but this did not preclude her having, and indeed she did have, a co-existing pneumococcal bacteraemia: co-incidence of bacterial and viral infections in this way was well recognised. It was the pneumococcal disease which ultimately had pierced the blood-brain barrier, forming a pneumococcal meningitis which had led to the brain injury in this case.
Crucially, Mr Justice Johnson made a finding that the bacteraemia was symptomatic at the time of observation by the GP but that the intramuscular injection and the oral anti-inflammatory and antipyretic drugs (ibuprofen and Calpol/paracetamol) administered by the GP and on arrival in hospital had had rapid effect on the claimant's symptomology, lowering her temperature and bringing her from arguably the lowest point on the AVPU scale (alert; responsive to voice; responsive to pain; unresponsive) to the foremost. Although the experts had agreed that the bacteraemia was present in the claimant's body at the relevant time, they had disagreed on it being clinically observable and on the probability of symptoms abating so quickly after the medical interventions.
There was therefore nothing inherently unreasonable in
the impression noted by the hospital doctors that the claimant had tonsillitis, or indeed that the symptoms she was displaying on examination were not typical of a serious bacterial infection they were not: by the time of being examined by the consultant, the observations did not indicate that a lumbar puncture should be performed. But both the GP's noting of the symptoms of possible photophobia, poor floppiness, lethargy, vacant expression and vomiting and/or the possibility that medical interventions had altered those symptoms appear to have been disregarded. What needed to be compared to the objective reasonable standard in this case was therefore not a failure of, or a failure to act upon, clinical observation per se, but a failure to take into account the wider context which included (1) the notes provided by the GP indicating certain symptoms not consistent with a tonsillitis and (2) the possibility that the medical interventions had had an early clinical effect on the claimant's bacterial infection.
With regard to the SHO, Mr Justice Johnson found that she did not fall below the reasonable standard. Indeed she had indicated in her notes that meningitis was `unlikely' implying it was not fully excluded. Her examination had been careful, thorough and appropriate and she had admitted the claimant for observation. There was a question of whether she should have ensured that the claimant was seen by the consultant earlier in the afternoon but this could not be said to have been causative of the injuries complained of, so was disregarded. Interestingly, although in a different section of the judgment he noted that a temperature of 40C was not consistent with a tonsillitis, he made no criticism in his conclusions on the SHO's care in apparently not identifying such an inconsistency.
With regard to the consultant, however, the Judge found that the exclusion of the possibility that the claimant was suffering from a serious bacterial infection was not supported by a responsible body of medical opinion; or to the extent that a body of medical opinion might support the view that such an infection could have been excluded then it would not withstand logical analysis. The standard of medical care provided by the consultant therefore fell below what was reasonable. In particular, the only safe way to proceed, given that the symptomatic history was not obviously consistent with
Medical Law Briefing September 2020
tonsillitis but was with a serious bacterial infection, was The case highlights that in some circumstances, in order
to perform other diagnostic tests namely a lumbar
to meet the reasonable and competent standard of
puncture to exclude other possible diagnoses.
care, clinicians will have to consider not only their own
PROFESSIONAL NEGLIGENCEHaving found such a breach, causation of the
observations when decision making, but to also consider the wider medical context presented to them,
neurological injury was not in dispute: if such a lumbar which in this case included the symptoms observed by
puncture had been performed, it would have identified the GP. The consultant's examination in isolation had
a pneumococcus, treatment would have commenced, been perfectly reasonable, both in its process and
and the relevant neurological damage would have been conclusions, but it had been unreasonable not to
address symptoms noted by a respectable medical
colleague and to at least consider why these might no
There was also a claim with regard to the general care longer be observable.
given by the Trust defendant to the claimant in the
period between examination by the SHO and by the
consultant, which the judge heavily criticised but this
was not causative of the injuries in question. The
failures were not failures of observation but of
1 Chancery Lane offers one of the largest, specialist medical law and clinical negligence teams in the sector.
Acting on large, multi-party actions as well as individual cases, members of 1 Chancery Lane specialise in: claims relating to organ retention cervical screening human growth hormone cardiac surgery HIV/haemophilia fatal accidents and catastrophic injuries (particularly those involving the spine or birth trauma) mental illness, as well as those concerning consent and safeguarding human rights difficult causation and quantum issues inquests inquiries GMC and GDC regulatory cases and other professional disciplinary tribunals.
1 Chancery Lane, London, WC2A 1LF Tel: +44 (0)20 7092 2900 Email: [email protected] DX: 364 London/Chancery Lane