Deficient, incorrect or delayed treatment does not establish a breach of the substantive limb of Article 2 ECHR
Grand Chamber Judgment in Lopes de Sousa Fernandes v Portugal
When the Chamber judgment in this case was handed down two years ago it was the subject of considerable comment. The Chamber found a breach of the substantive limb of Article 2 ECHR where the court had identified a lack of coordination between relevant hospital departments in the context of the care provided to the deceased. In a trenchant dissenting judgment it was observed that:
‘… the attribution of State responsibility exclusively on the basis of an alleged lack of coordination among the various units of the same hospital radically departs from the principles referred to in the judgment itself …’.
The case was referred to the Grand Chamber for consideration. In a judgment handed down on 19 December 2017, the Grand Chamber reversed the Chamber’s finding of a breach of the substantive limb of Article 2 but upheld the Chamber’s finding of a breach of the procedural limb.
The relevant principles
Whilst noting that different considerations apply when the State has direct responsibility for the welfare of individuals, such as detainees, the Grand Chamber summarised the principles which apply to the substantive limb of Article 2 in the context of healthcare [paragraphs 190-196]. Using language drawn from the judgment these are summarised as follows:
In the very exceptional circumstances described below, the responsibility of the State under the substantive limb of Article 2 of the Convention may be engaged in respect of the acts and omissions of healthcare providers:
- Where an individual patient’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. (our emphasis)
- Where a systemic or structural dysfunction in hospital services results in a patient being deprived of access to life-saving emergency treatment and the authorities knew about or ought to have known about that risk and failed to undertake the necessary measures to prevent that risk from materialising, thus putting the patients’ lives, including the life of the particular patient concerned, in danger.
For a case to fall into the latter category, the following factors, taken cumulatively, must be met:
- The acts and omissions of the healthcare providers must go beyond a mere error or medical negligence, in so far as those health-are providers, in breach of their professional obligations, deny a patient emergency medical treatment despite being fully aware that the person’s life is at risk if that treatment is not given, and
- The dysfunction at issue must be objectively and genuinely identifiable as systemic or structural in order to be attributable to the State authorities, and must not merely comprise individual instances where something may have been dysfunctional in the sense of going wrong or functioning badly, and
- There must be a link between the dysfunction complained of and the harm which the patient sustained, and
- The dysfunction at issue must have resulted from the failure of the State to meet its obligation to provide a regulatory framework in the broader sense indicated.
The judgment provides helpful clarification on the application of the substantive limb of Article 2 to deaths in the context of healthcare.
It reaffirms the approach applied in cases such as Powell v United Kingdom that matters such as ‘error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient’ are not sufficient in themselves to establish a breach of the substantive limb of Article 2.
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 Judges Sajo and Tsotsoria
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