Human Rights Article 2 and Medical Negligence Investigation.
This extended quotation is from a discussion about patient safety by Dr Michael J Powers QC. It explains some of the legal background to the right to a thorough investigation into the circumstances surrounding a negligent death.
“When a death suspected to have resulted from poor medical practice/care occurs, the coroner’s inquest is very often the only opportunity for the factual circumstances to be investigated. There are no national figures but anecdotal evidence suggests between 7,000 and 13,000 of the 25,000 inquests each year relate to deaths in hospitals. Thousands of deaths caused through incompetent care are never investigated at all particularly those from amongst the most disadvantaged in our society. Of those deaths which are investigated, the quality of the investigation is variable. Coroners are under financial pressures from their local authorities and complain that they simply do not have the resources properly to carry out such investigations. The present system is totally unsatisfactory. The anticipated “urgent official attention” to the problem has only just resulted in a government statement from Harriet Harman QC. A Bill is expected at the end of the year.
Since 1995 coroners have relied upon the decision of the Court of Appeal in Jamieson, to limit the scope of investigation of how the death occurred, interpreting “how” as “by what means” rather than “in what broad circumstances”. The pressure for proper investigations into hospital deaths has increased since the Human Rights Act 1998 came into force and the new legislation will have to be compatible with it.
Under the terms of Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms “Everyone’s right to life shall be protected by law…”. It has been argued in a number of coroners’ cases that in respect of unnatural deaths in NHS hospitals the state has an investigative duty under Article 2 - what has come to be known as “Article 2 being engaged”. In Goodson, where a man died from peritonitis from an iatrogenic double bowel perforation, Richards J (as he then was) recognised that the language of the Strasbourg cases is sometimes confusing, eliding the positive and procedural obligations under the Article. The Court of Appeal have recently clarified the position in Takoushis where a schizophrenic at high risk of self harm left a hospital without being seen within 10 minutes required by the system and committed suicide. Article 2 being engaged means that the state itself has an obligation to investigate the death which, since Middleton, is usually done through the medium of the coroner’s inquest. A medical death where there is evidence to support a charge of gross negligence manslaughter falls within this category.
However, the majority of medical deaths are caused by simple negligence. In these cases Article 2 is not engaged in the sense of the definition, but under Article 2 the state still has a positive obligation to set up an effective judicial system. This includes the effective and practical investigation into medical deaths. Importantly, civil proceedings cannot be assumed to be sufficient: the claim may only be for a comparatively small sum such that it would not make practical or economic sense for civil proceedings to be begun; a family may not be able to obtain legal aid; liability may be admitted. In each case an independent investigation of the facts as part of the civil process is rendered impossible.
The inquest thus fulfils a vital role in discharging the state’s obligation under Article 2 even into medical deaths where Article 2 is not “engaged”. The hearing still has to be a full, fair, practical and effective public investigation into the facts in which the family is able to take a full part. Indeed, the only practical difference between Article 2 being “engaged” and not being “engaged” is that in the former, the investigation has to be initiated by the state per se. Although the Court of Appeal was bound by the decision in Jamieson, looking at the way the Court approached the facts, it is clear that Takoushis extends the interpretation of “how” the deceased came by his death well beyond the Jamieson restriction. The new inquest ordered in Takoushis obliges the coroner to conduct a full and proper investigation of the operation of the system at the hospital which allowed the deceased to leave before being seen by a psychiatrist. In practice the inquest into “how” a medical death occurred has become, as it should, an investigation into both the means and the circumstances of the death.
The proposed new legislation on coroners must embrace these principles. Coroners will be full time specialists. Given sufficient training, proper funding and the independent medical expert assistance they undoubtedly require when investigating medical deaths, the inquest in its developing format could satisfy the need for proper inquiries into medical deaths. The full participation of the family of the bereaved will probably require public funds to be made available for representation in appropriate cases. Given an appropriate system for recording and reporting such inquiries, essential lessons for future patient safety can be learned.”
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