Lopes de Sousa Fernandes v Portugal (Application no. 56080/13) ECtHR Grand Chamber, 19.12.2017

The ECHR Chamber judgment in Lopes (15 December 2015) had the potential to expand the situations where a Middleton style “Article 2 inquest” would be required. The Chamber judgment appeared to widen the scope of Article 2 protections to incorporate errors of judgment on the part of health professionals and miscommunication between hospital departments. If poor judgment calls and miscommunications were now to be considered a substantive breach of Article 2 then many hospital deaths would require an inquest fully compliant with Middleton principles. It was perhaps only the unavailability of the judgment in English that held back the flood[1].

If poor judgment calls and miscommunications were now to be considered a substantive breach of Article 2 then many hospital deaths would require an inquest fully compliant with Middleton principles.

However, the Grand Chamber of the European Court of Human Rights (“the Court”) has now reversed the previous Chamber judgment and held, by a 15:2 majority, that there was no violation of the substantive limb of Article 2 in respect of ‘merely’ negligent hospital treatment.

The judgment provides important clarification on substantive Article 2 claims and would appear to limit such claims in the healthcare sphere to cases of a denial of life-saving treatment caused by systemic/structural issues rather than individual error. The Court has now made clear that “mere error or medical negligence” is not sufficient[2].

The case however remains of relevance for inquest practitioners as the Court upheld the finding that there had been a violation of the procedural limb of Article 2 owing to the delay in implementing the extant state structures to investigate the death.

R (Silvera) v Senior Coroner Oxfordshire [2017] EWHC 2499 Admin, 20.10.17

Inquests play an essential role in ensuring public accountability when our hard pressed public services don’t always manage to get things right. That inquests allow for the full involvement of the family when publicly exploring the facts and coming to the understanding of what has happened is one of their most important features. The independence of the Coroner (or jury) when reviewing the circumstances of a death is crucial; as is the Coroner’s power to then notify any concerns to those who can take steps to make things safer for us all in the future.

Against that background it should, perhaps, not even need the added impetus of Art 2 ECHR to understand why some deaths are crying out for a publicly held independent investigation. Whilst the coronial jurisprudence around Art 2 ECHR and the investigative obligations that flow from it can be complex, it is hard for the outside observer to discern why the Senior Coroner in this present case was not even persuaded that Art 2 ECHR was engaged, let alone that an inquest was then required to satisfy the State’s investigatory obligations.

The facts

The bare facts are that a woman, who all accepted was mentally unwell, had absconded from a psychiatric hospital by jumping out of a window just one day after the decision had been made to change her status to that of an informal patient (and so not continue with her detention under the Mental Health Act 1983). The woman had also absconded the previous month, and at that time the staff had told police the woman was “very unwell” and “at risk of causing violence”. On this second occasion the police were again asked for assistance to return her to hospital and were told that the staff believed the patient “might do something” and “may be holding [her mother] hostage”. Yet she was nevertheless left in the community un-assessed for a further five days. At some point during that period she killed her mother.

Engaging Art 2

Even a cursory reading of Rabone and Sargantson[1] would suggest it was at very least arguable that the state’s Art 2 obligations were engaged here, given the involvement of these two public bodies – and particularly as an internal NHS inquiry had already pointed to a number of shortcomings in the patient’s care and risk assessment.   Indeed the Chief Coroner, who gave the decision of the High Court, seems to have felt it was so abundantly clear that Art 2 was engaged that he didn’t even bother wasting any space in his judgment explaining why[2].

The Senior Coroner, however, did not accept that Art 2 was engaged and further, even if it was, did not agree that resuming the inquest was required in the context of a guilty plea and the public bodies’ having already conducted their own investigations.

As the Chief Coroner has now made abundantly plain: where there has not already been an independent investigation of a death that has allowed for the proper involvement of the family and with a sufficient element of public scrutiny, then the inquest must be the vehicle to achieve this.