What Does Article 2 Require in Cases of Medical Negligence or Analogous Situations? KATE GRANGE Thursday 25 th January 2007
1) Introduction 1. The aim of this paper is to consider a particular category of cases which has been the subject of specific attention by the ECtHR and domestic courts, namely medical negligence cases. It is intended that this paper is read in conjunction with the paper prepared by Eleanor Gray which looks at the broader question as to when the investigative obligation arises under Article 2 and its scope. 2) Distinction between custody and medical negligence cases Goodson and Takoushis 2. Within the caselaw an important distinction has emerged between cases involving deaths in custody and those deaths which result from medical negligence in hospital. In identifying this distinction and explaining its rationale the Courts have embarked upon a complex analysis of Article 2, often touching upon jurisprudential questions arising in this context. This exercise has not been an easy one and many judges have found the application of the Strasbourg authorities very difficult in this particular context 1. Overall this has reinforced the casespecific nature of the investigative obligation and highlighted the need for further practical guidance in this area. 3. The leading domestic case in the medical negligence context is the Court of Appeal decision in R(Takoushis) v Her Majesty s Coroner for Inner North London and Others [2006] 1WLR 461; a decision which approves and develops the analysis of Richards J in Goodson v HM Coroner for Bedfordshire and Luton [2006] 1 WLR 462. 4. In Takoushis the Court of Appeal had to consider the conduct of an inquest into a suicide. Mr Takhousis was a man of 64 with a long term history of schizophrenia. 1 See for example the comments of Richards J in Goodson v HM Coroner for Bedfordshire and Luton [2006] 1 WLR 462 at paragraph 59. 2
In January 2003 he was admitted to hospital as a voluntary psychiatric patient, however four days after being admitted he left the hospital and did not return. He was next seen at about midday preparing to jump off Tower Bridge. The emergency services were called and he was taken to St Thomas s Hospital where he was seen in A&E. A system was in place for the assessment of mental health patients, however a delay occurred and Mr Takoushis was not assessed within the 10 minutes envisaged by the system. During the time that he was left alone (approximately one hour), he left the hospital and just before 3.00pm he was seen jumping into the Thames. His body was recovered some five weeks later. 5. An inquest was opened into the death and a number of specific applications were made by the family in terms of the conduct of the inquest. These applications were rejected by the Coroner and in particular: (1) he refused an application for the inquest to be heard before a jury and (2) he refused to adjourn the inquest to enable the family to take expert advice with a view to the opinion of an expert being put in evidence. These refusals were the subject of a challenge to the administrative Court on the basis that Article 2 was engaged and therefore the Coroner should have acceded to the requests. Whilst the Court assumed at first instance that Article 2 was in fact engaged, the Court of Appeal were asked to consider the appeal in two stages, first on the basis that Article 2 was not engaged and second to address the question whether Article 2 was engaged. 6. During the first stage of its enquiry the Court of Appeal concluded that, on the assumption that Article 2 was not engaged, the appeal would be allowed on the basis that the coroner had erred in law when deciding not to summon a jury. The Court of Appeal indicated that a new inquest should be held. 7. In considering the second stage of the appeal and the question whether Article 2 was engaged the Court of Appeal highlighted the important distinction between: a. The positive obligation on the state to provide for the protection of life and 3
b. The separate procedural or adjectival obligation on the state to investigate death (see para 73). 8. In summary the Court of Appeal held as follows: a. That if the procedural obligation was linked to the positive obligation in article 2, the investigative obligation would indeed be very limited i.e. if the procedural obligation only arose where it appeared that the positive obligation had been or may have been violated, it would limit very substantially the circumstances in which the investigative obligation would arise. In this regard the Court of Appeal agreed with the observations of Richards J in Goodson 2 at paragraph 51. b. On a proper analysis of the ECtHR caselaw it was clear that the Court did not always link the procedural obligation with the positive obligation see in particular Powell v United Kingdom (App No. 45305/99 unreported 4 May 2000), Sieminska v Poland (application 37602/97) and Calvelli v Italy (application 32867/96, 17 January 2002). c. The need for an effective investigation was therefore not limited to those cases where there was a potential breach of the positive obligations to protect life, but that where agents of the state potentially bear responsibility for the loss of life, the events should be subject to an effective investigation. d. In medical negligence cases and matters involving errors of judgment on the part of a health professional there was unlikely to be an arguable breach of the positive obligation to protect life, yet nevertheless the state s obligation under Article 2 extended to (1) ensuring that adequate provision was made for securing high professional standards among health 2 Goodson v HM Coroner for Bedfordshire and Luton [2006] 1 WLR 462 4
professionals and the protection of the lives of patients (this applied whether or not the professionals operated in the public or private sector) and (2) the need for an effective independent system for establishing the cause of death of an individual and any liability on the party of the professionals involved (see paras 87-88). e. Whilst there was confusion within the caselaw as to how an effective investigation fitted in with the structure of Article 2, the better view was that the need for such an investigation arose not because of a separate procedural obligation to investigate, but as a result of the positive obligation to establish a framework of legal protection. In this regard the Court of Appeal approved the reasoning of Richards J in Goodson at paragraph 97. f. In order to comply with Article 2, the state must set up a system which involves a practical and effective investigation of the facts. But that is not to say that there is an independent obligation on the state to investigate every case in which it is arguable that there was, for example, medical negligence (see paragraphs 94 and 95). g. There was no separate procedural obligation to investigate under Article 2 where a death in hospital raises no more than a potential liability in negligence (see paras 104 to 105 and the fourth, fifth and sixth conclusions of Richards J in Goodson at para 59). It would only be in exceptional cases where the circumstances gave rise to a possibility of a breach of the state s positive obligations to protect life under Article 2 that the separate procedural obligation to investigate would arise. h. The obligation was to establish a framework of legal protection, including an effective judicial system for determining the cause of death and any liability on the part of the medical professionals involved. In the medical 5
negligence context the obligation might be satisfied if the legal system affords the victim a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts and disciplinary measures might also be envisaged (see Calvelli and Vo v France (2005) 40 EHRR 12). i. The fact that the state has made it possible in law for a family to bring a civil action in negligence will not be a sufficient discharge of the state s obligation in every case. This may be because litigation is not practical or because liability has been admitted. At paragraphs 99 and 100 the Court of Appeal stated: 99. If, as in our opinion is the case, the system must be practical and effective, we are not persuaded that the mere fact that the state has made it possible in law for the family to begin a civil action against those said to be responsible is by itself a sufficient discharge of the state s obligation in every case. For example, it may not be practicable for the family to procure an effective investigation of the facts by the simple expedient of civil proceedings. Their claim may be for a comparatively small sum, as for example where the only claim is that of the estate of the deceased, such that it would not make practical or economic sense for civil proceedings to be begun, especially for a family who is not able to obtain legal aid. 100. Another possibility is that the facts may be such that liability has been admitted, with the result that, at any rate under the adversarial system in operation in England, there can be no trial and thus no independent investigation of the facts as part of the civil process. j. Unlike in the cases of death in custody, the system does not have to provide for an investigation initiated by the state, but may include such investigation. The question in each case is whether or not, on the facts, there has been compliance with the obligation to provide the potential for a practical and effective investigation of the facts and the determination of civil liability. 6
k. A system which provided only for civil liability, and not an inquest, may not be sufficient. However on the facts of the case in question, the possibility of a civil process together with a traditional non-middleton inquest would be sufficient. The inquest would provide a practical and effective investigation of the facts in which the family would be able to take full part. l. A clear distinction can be drawn between the clinical negligence cases and the custody cases. 9. This decision has given rise to a number of important areas of debate in this context and I propose to consider the following particular questions: a. To what extent will the Court scrutinise whether a practical and effective system is available and what are the practical difficulties which arise in this context? b. What is the threshold for determining whether the separate investigative obligation does in fact arise in any particular case? c. To what extent do the principles applicable in the medical negligence context apply in other analogous contexts? 3) Practical and effective system 10. Whilst the decision in Takoushis is largely on all fours with ECtHR jurisprudence, it does arguably go further than the Strasbourg caselaw in scrutinising the requirements of a practical and effective system. In particular by taking the step of questioning whether civil proceedings would, in reality, satisfy this requirement, the Court of Appeal extends the analysis beyond that previously apparent in the Strasbourg cases. For example in Powell and Calvelli the ECtHR relied heavily on the availability of a civil remedy in concluding that the Article 2 7
requirements were satisfied. There is no sign however within those judgments of the Court embarking upon any detailed investigation into whether, in practice, a full fact-finding liability trial was available. In Calvelli the ECtHR stated: The case file shows that in the civil proceedings the applicants entered into a settlement agreement with the doctor s and the clinic s insurers and voluntarily waived their right to pursue those proceedings (para 54) What is not apparent from the judgment is the extent to which the ECtHR probed into the background to the settlement and the question as to how practical it was to continue the proceedings in the face of a settlement offer from the insurers. Indeed at paragraph 30 of the decision all that is noted about the settlement is the sums received, not the practicalities of proceeding with the proceedings including issues of funding and any likely liability for costs. 11. Some support for the approach in Takhoushis is however apparent from the recent ECtHR decision in Byrzykowski v Poland (app no. 11562/05) (27 June 2006). That case concerned the death of a mother and serious injury to a newborn child following a caesarean section. Serious questions were raised as to the conduct of the medical professionals who performed the procedure and this was the subject of criminal and civil proceedings together with disciplinary investigations. Whilst there was no indication that there had been any failure on the part of the State to provide a procedure whereby the criminal, disciplinary or civil responsibility could be established, the Court nevertheless decided to examine how this procedure worked in the concrete circumstances of the case. In this regard the Court found that: a. The criminal process had been subject to number of stays and significant delays had occurred; b. Investigations were discontinued three times; c. This disclosed a serious deficiency in the operation of the judicial system; 8
d. The applicant had been left in a state of further uncertainty as to the status of disciplinary proceedings; e. After 7 years there had been no final decision in any of these proceedings. (see paragraphs 107 to 116) 12. In those circumstances the Court was of the view that it could not be said that there had been an effective examination into the cause of death. As a result there had been a procedural violation of Article 2 of the Convention and an award of damages was made for non-pecuniary damage (20,000 EUR). 13. It is submitted that the approach of the ECtHR in the Byrzykowski case is consistent with the approach taken by the Court of Appeal in Takoushis i.e. it demonstrates that the Court may well want to investigate whether the system established by the State does in fact perform the function of a practical and effective investigation; the mere assertion that proceedings are available may not be sufficient. 14. What is however clear following Takhoushis (and now Byrzykowski) is that by probing further and questioning whether civil (or indeed any other form of proceedings) will in fact be available in practice, a number of difficult questions arise. It may be that it is not until a very late stage in the civil proceedings that it becomes apparent that there will be no liability trial with its consequent factual investigation. This gives rise to the problem that no one will know whether or not sufficient investigation afforded by civil litigation has been put in place until the reality of the investigation afforded by the civil litigation has been ascertained. Funding issues may need to be resolved and settlement negotiations considered. Until this process is concluded it will be difficult for advisors to provide firm advice as to the likely impact of the positive duty under Article 2. Further, if it turns out that civil proceedings do not, in fact, provide sufficient investigation detailed consideration will then need to be given as to whether other available avenues (which may or may not already have been pursued eg. an inquest) will be 9
sufficient to satisfy the requirement of a practical and effective investigation or whether further steps will be required in order to satisfy the Article 2 requirements. 4) What is the threshold for determining whether the separate investigative obligation does in fact arise in a particular case? 15. An important question in these types of cases is when the separate adjectival investigative obligation will arise. 16. In Goodson Richards J held as follows: It will only be in exceptional cases, where the circumstances give rise to the possibility of a breach of the state s positive obligations to protect life under article 2, that the separate procedural obligation to investigate will arise and an inquest may have to perform the function of discharging that obligation 17. In Takhousis the Court of Appeal held as follows: It is important to note that Richards J refers to simple negligence. The position is or may be different in a case in which gross negligence or manslaughter is alleged: see Regina (Khan) v Secretary of State for Health [2004] 1 WLR 971. By gross negligence we mean the kind of negligence which would be sufficient to sustain a charge of manslaughter. (paragraph 96) 18. Indeed it should be noted that in Goodson Richards J specifically held that his findings were not inconsistent with the Court of Appeal decision in Khan where the conduct of the medical professionals had been characterised as grossly negligent and where the family s solicitor was not unreasonably concerned that there may have been a medically orchestrated cover-up (see paragraphs 61ff). Since the allegation of negligence in that case was much more serious than one of simple negligence, the decision in Khan that the investigative obligation was 10
triggered, with consequential implications for the inquest in that case, was not inconsistent with the Court s analysis. 19. It is apparent therefore that the Courts have addressed two clear-cut positions which arise in this context i.e. simple negligence on the one hand and gross negligence (sufficient to sustain a charge of manslaughter) on the other. What remains however is the possibility of a systemic or procedural failure on the part of a hospital where there may have been a breach of the positive obligation to protect life but yet the failing is not one which can be characterised as one of gross negligence in the sense discussed in the cases above. 20. In a situation where systemic failings are in play and there has been a potential breach of the state s positive obligation to protect life, the caselaw is currently unclear as to what will be necessary to satisfy the Article 2 requirements. On the basis however of the conclusions reached in Goodson (see paragraph 16 above) as approved by the Court of Appeal in Takhoushis, it is highly arguable that a full Article 2 duty to investigate is engaged and as such a Middleton type inquest may well be necessary to discharge that duty. It is hoped however that some guidance on this particular question may be provided in future cases. 5) To what extent do the principles applicable in the medical negligence context apply in other analogous contexts? 21. Both the custody and the medical negligence cases have received a great deal of attention from the Courts in recent times and an interesting question arises as to the extent to which the principles which apply in the latter category will be readacross into other analogous areas. In particular the question arises as to whether the threshold required to trigger the Article 2 investigative obligation in medical negligence cases will also apply in similar, albeit not identical, situations. 11
22. The starting point here is the fact that the investigative obligation is case-specific and its requirements will vary depending on the context. This is made clear in Takoushis and also in the more recent case of R(JL) v Secretary of State for the Home Department [2006] EWHC 2558 (Admin). In that case Langstaff J rejected the submission by the SSHD that the same threshold triggering the Article 2 investigation applied in all cases across the board and regardless of the context. At paragraphs 34ff he stated: 33. I reject, too, the suggestion that the same watershed test is applicable in determining whether the investigative obligation arises at all (leave aside what its content is) in all cases, as I have already discussed above. There is a clear need for a threshold where what is in issue is whether the State has sufficiently effective criminal or civil laws apt to protect life where that life is threatened not by an agent of the State, but by a third party or by the victim's own hand. Plainly, where the victim is otherwise free within society, not every suicide or suicide attempt necessarily requires investigation. The distinction between such cases, and those such as the present is that in the latter the individual concerned is involuntarily in the care and under the direct control of the State. 34. The authorities upon which Mr Eadie relies do not compel any other result. He recognised that the argument in Middleton, and Lord Bingham's remarks at paragraph 3 were obiter (though naturally highly persuasive). Those expressions of view in Middleton deal with the general scope of the obligation in a case in which the issue, though concerning a prisoner who had committed suicide, related to the content of the investigation. Neither Goodson nor Plymouth was a case involving prisoners. Moreover, properly understood the judgment in Plymouth does not support the view that the threshold for the investigative obligation to arise had not been crossed. The opening words of paragraph 66 (upon the latter part of which Mr Eadie relied) recognises that "on any view" the State was under a duty to set up an appropriate investigation into the death there considered. The issue was not whether there should be an investigation, but whether a subsisting investigative duty existed in circumstances in which there was already to be an inquest. Miss Stern's point that the context was very different from that of the present case is in my view well taken. 35. The formulation of the test applied in the context of cases such as Osman cannot be extrapolated across the panoply of other cases to which Article 2 might conceivably apply. As Wilson J. pointed out in Plymouth (see paragraph 69) the Court of Appeal in R (A) v Lord Saville of 12
Newdigate [2002] 1 WLR 1249 commented that the Osman test was "well above the threshold that will engage Article 2 when the risk is attendant upon some action that an authority is contemplating putting into effect itself." The action of authority in that case threatened to create conditions in which a risk to life was increased. The fact of imprisonment by authority carries an increased risk too (as the statistics quoted both in Middleton, and updated by Mr Justice Munby in R (D) v Secretary of State for the Home Department EWHC 728 (see paragraphs 5 and 6) indicate). 23. As to where the threshold has been held to fall in analogous situations to the medical negligence cases, the decision in Plymouth City Council v Her Majesty s Coroner for Devon and Others [2005] EWHC 1014 (Admin) is of interest. In that case Wilson J considered whether an inquest into the death of a child should extend to the role of the statutory child protection agencies. 24. He held that on any view the state was required to set up an appropriate investigation into the child s death, since it was clear that by their criminal neglect of the child its mother and her cohabitant had contributed to the death. The state s investigative duty would be discharged by the provision of the criminal proceedings in which the two were convicted. 25. In order however for the investigative duty to extend any further, the death would have to be arguably the result of breach of the state s protective duty under Article 2 and this was the appropriate threshold when considering whether there was a subsisting investigative duty. Applying the Strasbourg authorities and in particular the cases of Z v UK 3 and E v UK 4 (both of which involved similar allegations on the part of child protection agencies), Wilson J held that the test to be applied had been correctly summarised by the Coroner in the following terms: A breach will be found if it is established that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. 3 [2001] 2 FLR 612 4 ECHR 26 November 2002 application no. 33218/96 13
26. On the facts of the case it was found that this test was not met and therefore the Coroner had been justified in his refusal to extend the inquest to consider the role of the statutory child protection agencies. 27. Thus it would appear that very similar principles those applicable in the medical negligence context are likely to apply in analogous situations such as where there are allegations of negligence on the part of child protection agencies. In such cases the separate and ancillary investigative obligation will not arise (aside from other positive obligations under Article 2 - such as the establishment of a practical and effective judicial system) unless the death is arguably the result of breach of the state s protective duty under Article 2. Whilst the application of this test will depend heavily on the particular facts of each case, in practice such cases are likely to be very exceptional. 28. Finally however it should be noted that in cases involving dangerous activities where there is a foreseeable risk to life on the part of agents of the state, different principles are likely to apply. In those cases the principles which will be applicable are likely to be very similar to those which apply in the use of lethal force cases such as Osman and Van Colle 5 (see for example Oneryildiz v Turkey [2004] ECHR 48939/99 at paragraphs 91 to 96). 24 th January 2007 5 Van Colle v Chief Constable of Hertfordshire Police [2006] EWHC 360 14