In a tour de force judgment, that deserves plaudits for its several pages of lucid exposition of the application of Art 2 in respect of deaths associated with medical treatment, the Divisional Court have re-affirmed that the Art 2 investigative obligation will not be engaged if what is being alleged amounts to no more than medical negligence by healthcare staff.
Although Art 2 rights could be infringed if an individual’s life is knowingly put in danger by the denial of access to life-saving emergency treatment, the state’s Art 2 obligations do not extend to circumstances where a patient is considered to have received deficient, incorrect or delayed treatment.
That conclusion is perhaps of little surprise given the very recent and authoritative statement of the relevant principles set out by the Grand Chamber of the European Court in Fernandes v Portugal[1] (see our earlier blog). Indeed once Fernandes was decided in December 2017 the main part of the Claimant’s judicial review claim was already thoroughly holed below the water line. Mr Parkinson nevertheless sought to urge upon the Court that, if necessary, it should decline to follow decisions of the ECtHR.
Launching the final torpedo, the Divisional Court made it clear that only in exceptional circumstances would the courts in this country decline to follow the jurisprudence of the European Court of Human Rights. Fernandes was to be followed: and, on the facts, there had been no arguable breach of Art 2.