Medical Negligence
By Conal McGarrity
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Clinical Negligence and Human Rights

Medical negligence, in the broadest form, is when a medical professional or institute is in breach of the legal duty of care they owe an individual patient or patients. It is any instance of substandard care provided to a patient by a medical professional that causes injury or an existing condition to worsen.

Whatever the scale of the claim, for it to class as medical negligence you need to prove the medical professional failed to meet their duty of care, resulting in your injuries or illness.

As an experienced Medical Negligence and Human Rights practitioner, part of my role involves dealing with new client enquiries. A number of individuals that I have spoken to have claimed that their experiences in various hospitals across Ireland have breached their human rights.

A number of areas of medical law can be linked to human rights, for example, 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 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.

Article 2 of the Human Rights Act

However, specifically for medical negligence 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, we also successfully dealt with a number of cases where a patient’s human right to life has been breached.

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.

Lopes de Sousa Fernandes v Portugal

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 Mr De Sousa’s Article 2.

After Mr De Sousa 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 passed away.

In a healthcare setting, this case determined that, in order to establish a breach of the Article 2 duty to protect life, it may not be necessary 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 Grand Chamber

The De Sousa case was subsequently referred to the Grand Chamber to determine the argument between “Mere” medical negligence vs. “denial of access to life-saving emergency treatment”. The Grand Chamber, however, only found a violation of the procedural aspect of Article 2 on account of the length of the disciplinary, criminal and civil proceedings but no violation of the substantive aspect of Article 2. 

While consolidating the case law concerning “denial of access to life-saving emergency treatment” the Grand Chamber has simultaneously reaffirmed the very restrictive character of its substantive assessment in “mere” medical negligence cases. As a result, in such cases, the centre of gravity of the Court’s analysis remains to lie with the procedural aspect. 

A procedural approach to what essentially concerns a substantive human right, the right to life, is problematic in the absence of adequate guidance as to the scope of the substantive obligations. Without such guidance, the Court allows States leeway to hollow out the substance of the right behind the cloak of some degree of procedural fairness. Whist arguably the Chamber judgment went too far in extending the State’s substantive obligations in cases of “mere” medical negligence,  one can wonder if the Grand Chamber judgment did not go too far enough in reversing the evolution towards more substantive protection. In any event, it is regrettable that the Grand Chamber did not seize the opportunity to provide more guidance on the substance of the right to life in cases of “mere” medical negligence.

Sadly, clinical negligence cases often involve vulnerable members of our society. In addition the judgement above, 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 in this instance there will 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.

If you think you may have been affected by clinical negligence please contact P.A.Duffy & Co Solicitors here or complete the form below.

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