As a member of the clinical negligence team at HJA, part of my role includes helping to deal with new business enquiries. Many potential clients that I have spoken to claim that their experiences in hospital have breached their human rights.
Generally speaking, a number of areas of medical law can be linked to human rights under Article 8 of the Human Rights Act, which deals with the right to respect for private and family life. These include an individual’s entitlement to life-saving but expensive treatment verses the state’s duty to allocate resources proportionately; or an individual’s right to protection of their personal information regarding the disclosure of their medical records. And of course there is the debate regarding assisted dying which involves individual’s rights to respect for private and family life.
Specifically for medical negligence, however, one of the most obvious uses of human rights is Article 2 of the Human Rights Act, which deals with an individual’s right to life.
Although most of our team’s cases focus solely on the civil claim of medical negligence (where a healthcare professional’s breach of duty to their patient has resulted in some sort of damage to that patient), our team also successfully deal with a number of cases where a patient’s human right to life has been breached.
The right to life in a healthcare setting
Article 2 of the Human Rights Act provides that “everyone’s right to life shall be protected by law.” This includes a positive duty of the state to take appropriate steps to safeguard life. Healthcare trusts and hospitals are state controlled bodies, and as such they have a duty to protect an individuals’ right to life.
When medical institutions make decisions to detain patients suffering from mental illness those institutions owe their patients a duty to protect and respect their right to life. In a mental health setting, this translates to an ongoing and active duty which obliges hospitals to ensure that those in their care do not inflict life-threatening injury to themselves while detained.
A string of cases, most recently Rabone, have been instrumental in shaping the way practitioners view deaths of patients admitted to psychiatric units. In 2012 the Supreme Court heard the case of Rabone, which concerned a psychiatric patient who had been informally admitted to hospital following a suicide attempt. She was assessed as high risk of suicide but was allowed two days’ home leave (at her request) during which time she committed suicide.
This case reaffirmed previous court decisions and essentially set out the test used to invoke an Article 2 claim: whether the Article 2 obligation could, in principle, be owed to a mentally ill hospital patient who was not detained under the Mental Health Act; and if it could, whether there was a ‘real and immediate risk’ to the patient’s life which the healthcare provider had known or ought to have known and which it failed to take reasonable steps to avoid.
In this case the Court held that as an institution capable of detaining Ms Rabone and preventing her from leaving the premises, the hospital owed the same duty to her as it did to individuals that it was actively detaining.
Accordingly, Ms Rabone’s parents were able to bring a claim for damages pursuant to the Human Rights Act for a violation of Article 2.
A recent case before the European Court of Human Rights, Lopes de Sousa Fernandes v Portugal, suggests that mere negligence, without it being causative, can be a breach of Article 2 of the ECHR.
In this case dysfunctional communication between the Emergency and ENT departments in relation to the diagnosis of meningitis was seen as a potentially systemic failure and violation of Article 2. This is very different to the present approach in the context of healthcare providers in the UK, which might view this as an individual error of judgement.
In this case, after the Mrs De Sousa’s husband underwent an operation for the extraction of nasal polyps, he developed bacterial meningitis, which was not detected until two days after he had been discharged from hospital. Three months after the operation and after several re-admissions to hospital, suffering from acute abdominal pain and diarrhoea, he sadly died.
This case is significant for medical negligence practitioners, as although the negligent failure was not necessarily causative in this case (and therefore no medical negligence was found), the well-established authority of Rabone has been called into question.
Essentially, in a healthcare setting, it may no longer be required, to establish a breach of the Article 2 positive duty to protect life, to prove something more than simply a failure on the part of the hospital to meet the standard of care of the patient required by the common law duty of care.
The case has recently been referred to the Grand Chamber and is certainly one to keep an eye on. It could mean that a civil claim might, in addition to establishing negligence, result in a violation Article 2.
The future role of human rights in clinical negligence claims
Sadly, clinical negligence often involves vulnerable members of society. The proposed introduction of fixed costs in clinical negligence claims could impact our ability to argue cases for a breach of Article 2 by hospitals, in fatal claims where there may be an inquest and there is a claim for human rights , legal representation might be in jeopardy. In these circumstances, families and friends of the deceased could be deprived of much needed support as well as help changing systems, which is primarily what families want. Perhaps there may be scope for claims using the Human Rights Act regarding potential inequality of arms between a claimant and a defendant hospital with greater purchasing power.
The Human Rights Act has a clear impact on the duties owed by hospitals to psychiatric patients. While recent developments in the case of Lopes de Sousa seem promising, in light of the proposed changes to human rights law in the UK and changes to the structure of the NHS, it remains to be seen what the future holds for the role of human rights in clinical negligence litigation.