ECHR The Court was concerned with denial of access to medical treatment. The court held that in cases involving alleged medical negligence the State’s positive obligations were regulatory, including ‘necessary measures to ensure implementation, including supervision and enforcement.’ It continued by noting at [183] that medical negligence cases in which States have been held liable under Article 2 are ‘exceptional ones in which the fault attributable to the health care providers went beyond a mere error or medical negligence. It added:
For the Court’s examination of a particular case, the question whether there has been a failure by the State in its regulatory duties calls for a concrete assessment of the alleged deficiencies rather than an abstract one. In this regard, the Court reiterates that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention (see Roman Zakharov v. Russia [GC], no. 47143/06, ss 164, ECHR 2015 and the cases cited therein). Therefore, the mere fact that the regulatory framework may be deficient in some respect is not sufficient in itself to raise an issue under Article 2 of the Convention. It must be shown to have operated to the patient’s detriment (compare and contrast Z v. Poland, cited above, ssss 110-12, and Arskaya, cited above, ssss 84-91).
It must, moreover, be emphasised that the State’s obligation to regulate must be understood in a broader sense which includes the duty to ensure the effective functioning of that regulatory framework. The regulatory duties thus encompass necessary measures to ensure implementation, including supervision and enforcement.
On the basis of this broader understanding of the State’s obligation to provide a regulatory framework, the Court has accepted that, 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 health-care providers.
The first type of exceptional circumstances concerns a specific situation where an individual patient’s life is knowingly put in danger by denial of access to life-saving emergency treatment (see, for example, Mehmet Senturk and Bekir Senturk, and, by contrast, Sayan, both cited above). It does not extend to circumstances where a patient is considered to have received deficient, incorrect or delayed treatment.
The second type of exceptional circumstances arises 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 (see, for example, Asiye Genc and Aydogdu, both cited above).
The Court is aware that on the facts it may sometimes not be easy to distinguish between cases involving mere medical negligence and those where there is a denial of access to life-saving emergency treatment, particularly since there may be a combination of factors which contribute to a patient’s death.
However, the Court reiterates at this juncture that, for a case to fall into the latter category, the following factors, taken cumulatively, must be met. Firstly, the acts and omissions of the health-care providers must go beyond a mere error or medical negligence, in so far as those health-care 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 (see Mehmet Senturk and Bekir Senturk, cited above, ss 104).
Secondly, 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.
Thirdly, there must be a link between the dysfunction complained of and the harm which the patient sustained. Finally, 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 above.’
Citations:
56080/13, [2017] ECHR 1174
Links:
Statutes:
European Convention on Human Rights
Jurisdiction:
Human Rights
Citing:
Cited – Lopes De Sousa Fernandes v Portugal ECHR 15-Dec-2015
(Grand Chamber) . .
Cited by:
Cited – Gardner and Another, Regina (on The Application of) v Secretary of State for Health and Social Care and Others Admn 27-Apr-2022
Patient transfer policy was unlawful
The claimants had relatives who died in care homes early in the COVID-19 pandemic. They said that the policy of moving patients from hospitals to care homes without testing had contributed to the deaths, and many others, and had been unlawful. The . .
Lists of cited by and citing cases may be incomplete.
Human Rights
Updated: 28 April 2022; Ref: scu.608206
