Bringing a civil claim in negligence remains the standard route used by patients and their families seeking compensation in relation to substandard medical treatment; but what role does Article 2 of the Human Rights Act 1998 (HRA) play and should this impact on your internal investigations?

The duty

Article 2 imposes certain duties on the state. There is little doubt that NHS bodies, as state-controlled organisations, would be considered ‘public authorities’, and private healthcare providers might also fall into this category if, for example, they are being paid by the NHS to carry out an NHS service. The Article 2 duties:

  • prohibit them from intentionally killing
  • oblige them to protect life in certain circumstances, and
  • require an effective and proper investigation into all deaths caused by the state

The duty to investigate is, in practice, delivered through the coronial courts by way of an inquest. The coroner may decide to ’engage’ Article 2 in certain circumstances and in so doing extend the parameters of his/her enquiry. However, the duty most often relied upon as the basis for a civil claim within the healthcare context - often alongside a claim for clinical negligence - is the positive obligation to ‘protect life’.

Let us examine some particular areas of health service provision:

Prison healthcare

There is an on-going operational duty to safeguard a prisoner's right to life, particularly relevant in the context of self-harm. The courts accept that there is an increased risk of suicide amongst the prison population and the duty is only triggered when the authorities knew or ought to have known of a particular suicide risk. It is then necessary to look at what assessments have been undertaken in the lead-up to the death to establish whether staff should have been alerted to the risk and taken active steps to prevent the death.

Psychiatric patients

The leading case of Savage -v- South Essex Partnership NHS Foundation Trust [2008] UKHL 74 concerned a patient who had been detained under the Mental Health Act 1983 (MHA). She managed to leave the unit and take her own life. It was alleged that there had been a failure to order closer and more regular observations given the presence of signs suggesting the clear possibility of impending self-harm. The deceased’s daughter brought a HRA claim and it was held that hospitals detaining patients pursuant to the MHA owe a positive duty (like prisons) to ensure these patients do not effect life threatening injury to themselves. The court held that the trigger is whether there is a ‘real and immediate’ risk to life about which the authorities knew or ought to have known. The risk needs to be substantial or significant, present and continuing, rather than fanciful, remote or trivial.

This principle was extended in the case of Rabone & anor -v- Pennine Care NHS Foundation Trust [2012] UKSC 2. Melanie Rabone had been admitted as a voluntary patient within a psychiatric unit rather than having been formally detained. It was recorded that, should she request leave, she would need to be assessed under the MHA to consider whether protective detention was indicated. Ultimately she did request leave and was allowed home, but sadly ended her own life. The Court found that the assessment was negligent and she should not have been allowed to leave. Her parents were able to recover damages under the HRA.

What about general medical practice?

Based on the law as it stands, the death of a patient from a physical condition after negligent medical treatment is unlikely to trigger Article 2. This was confirmed in the case of Powell -v- UK [2000] ECHR 703, (2000) 30 EHRR CD362. However, the position isn’t altogether clear-cut. In the case of Lopes de Sousa Fernandes -v- Portugal [2015] ECHR 1107, it was held that there was a breach of Article 2 where there was a negligent failure to diagnose meningitis shortly after nasal polyp surgery, but this case is subject to appeal.

So, who can bring a claim and when?

Even if a claimant can establish that there has been a breach of Article 2, they will also have to show that they can satisfy the ‘victim test’. It is well-established that immediate family members will be victims, however it is less certain whether wider family members will. Whether they can will be determined based on whether any ‘special factors’ exist which give the suffering caused a ‘dimension’ and ‘character’ distinct from the emotional distress inevitably caused where there is breach of a person’s human rights.

Claimants also need to make sure any claim is brought within one year of the alleged breach.

What’s in it for the claimant?

The usual award sought is financial compensation. Although damages will only be awarded where the court is satisfied that it is ‘necessary’ to provide ‘just satisfaction’ and where domestic law does not allow complete reparation to be made.

In the case of Rabone, as Melanie was not a minor at the time of her death her parents were not entitled to recover a bereavement award under the Fatal Accidents Act. It was because of this perceived injustice that they claimed a breach of Article 2. The parents were awarded just £5,000 each (albeit the Court of Appeal, not asked to consider the amount of the award, did suggest this was probably too low).

Top tips if Article 2 is engaged?

If Article 2 is engaged this is unlikely to affect your internal investigations and so I would recommend taking the usual steps, to ensure a thorough consideration of the issues:

  • copy and retain a complete copy of the medical records, including all electronically stored documents
  • seek early comments from clinicians involved
  • undertake clinical reviews, SIs, RCAs etc where indicated, to draw out any issues at an early stage
  • communicate with families, making sure you comply with your obligations under the duty of candour
  • consider risk management implications, to improve safety within the organisation moving forwards