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A Marriage Between The Human Rights Act and Medical Negligence?….The Engagement is Definitely Off!

R (Parkinson) v HM Senior Coroner Kent, Dartford and Gravesham NHS Trust and Dr Hijazi (Interested Parties) [2018] EWHC 1501 (Admin)

Lorraine Harris reviews the case of Parkinson which now clarifies the extremely limited use of Article 2 in cases of death following medical treatment, as well as the difficulty of challenging the decision making of a Coroner.  Analysis at the close of the article reveals the salient points of the case.

Most of us were conscious that the relationship between Article 2 and cases of death following medical treatment was rocky, but the judgment in Parkinson finally confirmed that there is no chance of a reconciliation.  The case of Parkinson (R (Parkinson) v HM Senior Coroner Kent, Dartford and Gravesham NHS Trust and Dr Hijazi (Interested Parties) [2018] EWHC 1501 (Admin)) was heard by Lord Justice SINGH, Mr Justice Foskett and His Honour Judge Lucraft QC sitting as a Judge of the High Court.  You will no doubt be aware that His Honour Judge Lucraft is the Chief Coroner of England and Wales and one of his many responsibilities is to draft guidance for Coroners, this case is no exception and gives excellent clarity about the path of Article 2 engagement.

Relevant Previous Law:

The European Convention of Human Rights sets out in Article 2 the right to life shall be protected by law.  Should this right be breached the state have a duty to carry out an enhanced investigation.  This includes civil or criminal processes but for the purposes of this paper we concentrate on the inquest.

In the Coroners and Justice Act 2009 Section 5, the inquest remit is widened from ascertaining how, when and where the deceased came by their death to include “and in what circumstances” when Article 2 is engaged.  In non-article 2 inquests Coroners still have the capacity to inquire fully into aspects of the death but an Article 2 inquest has the ability to affect the wording of the conclusion.

The Parkinson judgment held the principle in European Court of Justice case of Fernandez (Lopes de Sousa Fernandes v Portugal (Application no. 56080/13) ECtHR Grand Chamber (19 December 2017) should be followed.  Fernandez set out that denial of access to treatment and systemic failures may trigger Article 2.  Article 2 will not be engaged in cases where a patient has received deficient, incorrect or delayed treatment.  The denial of access to treatment must be such the staff are fully aware that the patient’s life is at risk if they do not administer that treatment.  With regard to systemic failures, they must be capable of being attributable to the state rather than rogue instances of an individual not following procedure.

The Facts of the Case and Original Inquest:

The case was bought by Mr Gerald Joseph Parkinson who was the son of 91 year old.  Mrs Kathleen Parkinson.  Mrs Parkinson’s family regarded her as an active lady, however her medical history showed she suffered from dementia and was treated with antibiotics for a chest infection on 21st December 2010.  On 9th January 2011 Mrs Parkinson was bought into the Emergency Department of Darent Valley Hospital in North Kent.  The medical team present, including a Doctor Sameer Hijazi, witnessed agonal breathing (irregular pattern/laboured/gasping breathing sometimes accompanied by strange vocalizations) and formed the view that Mrs Parkinson was dying.  The Doctor gave intravenous fluid, antibiotics and gelofusine (which assists blood flow, cardiac output and oxygen transportation).  The Claimant did not accept the diagnosis and wanted his mother treated.  At the inquest evidence was heard that the Claimant became aggressive and threatening to the Doctor.  Some medical tests and treatments were available however given the quickly deteriorating health of Mrs Parkinson these could not be carried out within the limited time and she died.

The Senior Coroner for Kent delivered his findings of fact and conclusion on 14th July 2016.  He concluded the cause of death was “Bronchopneumonia combined possibly with right lung pulmonary thrombi” his cause of death favoured one expert over others.  He recorded a conclusion of natural causes.  The Coroner further decided that Article 2 had not been engaged nor was it necessary to submit a report to prevent future death.  The Claimant believed that Mrs Parkinson had been the subject of unlawful killing by gross negligence manslaughter.

Claimant’s Grounds:

The Claimant challenged the Coroner on five grounds:

  1. The finding that Article 2 did not arise was wrong in law and a breach of the Claimants convention rights.
  2. The finding regarding the medical cause of death was irrational.
  3. The use of a short form conclusion of natural causes did not constitute a sufficient discharge of his duties under the Coroners and Justice Act 2009.
  4. The finding that the Claimant’s conduct obstructed the care of Mrs Parkinson was irrational.
  5. The failure to make a Prevention of Future Death Report was wrong in law.

The Judgment:

The Court firstly clearly outlined the material legislation regarding the Coroner’s powers and duty.  It detailed the guidance on conclusions and neglect at paragraphs 26-32 (Guidance Number 17).

After an excellent digest of the relevant issues regarding engagement of Article 2 the Court the set down the relevant principles applicable to medical cases at paragraphs 82 – 91:

Summary of the relevant principles on Article 2

We hope it will be helpful if we summarise here the relevant principles which are to be found in the authorities to which we have made detailed reference above. This summary applies to medical cases

82. We hope it will be helpful if we summarise here the relevant principles which are to be found in the authorities to which we have made detailed reference above. This summary applies to medical cases.

83. Article 2 imposes both substantive positive obligations on the state and procedural obligations.

84. The primary substantive positive obligation is to have in place a regulatory framework compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients’ lives.

85. The primary procedural obligation is to have a system of law in place, whether criminal or civil, by which individual failures can be the subject of an appropriate remedy. In the law of England and Wales that is achieved by having a criminal justice system, which can in principle hold to account a healthcare professional who causes a patient’s death by gross negligence; and a civil justice system, which makes available a possible civil claim for negligence. We note that, in the present case, there is in fact an extant civil claim which has been brought by the Claimant against the NHS Trust which ran the hospital (which is the First Interested Party in the present judicial review proceedings).

86. The enhanced duty of investigation, which falls upon the state itself to initiate an effective and independent investigation, will only arise in medical cases in limited circumstances, where there is an arguable breach of the state’s own substantive obligations under Article 2

87. Where the state has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, matters such as an error of judgment on the part of a health professional or negligent coordination among health professionals in the treatment of a particular patient are not sufficient of themselves to call the state to account under Article 2.

88. However, there may be exceptional cases which go beyond mere error or medical negligence, in which medical staff, in breach of their professional obligations, fail to provide emergency medical treatment despite being fully aware that a person’s life would be put at risk if that treatment is not given. In such a case the failure will result from a dysfunction in the hospital’s services and this will be a structural issue linked to the deficiencies in the regulatory framework.

89. At the risk of over-simplification, the crucial distinction is between a case where there is reason to believe that there may have been a breach which is a “systemic failure”, in contrast to an “ordinary” case of medical negligence.

90. Furthermore, we do not regard the principles in Fernandes, which we have sought to summarise above, as being inconsistent with what the courts of this country have said under the HRA. Rather the distinction between a systemic failure and ordinary negligence cases is one which is also to be found in the domestic case law, for example in Savage and Rabone. Indeed the decision of the Court of Appeal on which Mr Rawlinson placed greatest reliance, Humberstone, makes the same distinction. It was (as most if not all such cases will be) a decision on its particular facts. Although Mr Rawlinson sought to characterise the failure in Humberstone as being a delay by the ambulance crew, in fact Smith LJ clearly regarded the alleged failure in that case to be of “a systematic nature such as the failure to provide suitable facilities or adequate staff or appropriate systems of operation”: see para. 58 in her judgment. She expressly then went to contrast that situation with “cases where the only allegations are of ‘ordinary’ medical negligence”: see also para. 58.

91. Finally, we remind ourselves in this context that Smith LJ said, at para. 71, that care should be taken to ensure that allegations of what are in truth allegations of “individual negligence” are not “dressed up as systemic failures”; and, at para. 72, that the person best placed to decide whether Article 2 is engaged is the coroner who conducts the inquest.

The Court then turned to each of the grounds:

  1. The finding that Article 2 did not arise was wrong in law and a breach of the Claimants convention rights.

The Court gave short shrift to the view that this was analogous to the case of Rabone.  Moving on to the substantive matter the Court found that there were nationally recognised systems in place which governed the triage of those patients entering the Emergency Department.  Differences between wards and the Emergency Department were fully understood by staff and the Court went to the trouble of detailing the spoken evidence at inquest.  The Court held that the Coroner was perfectly entitled to reach the view that no systemic issue arose and therefore no arguable breach of a substantive obligation of Article 2.  Therefore, it follows that there was no enhanced duty of investigation.

  1. The finding regarding the medical cause of death was irrational and
  2. The use of a short form conclusion of natural causes did not constitute a sufficient discharge of his duties under the Coroners and Justice Act 2009.

The Court addressed grounds 2 and 3 together.  They indicated the test submitted has an extremely high threshold to cross – that the findings of fact made by a coroner involved would be ones that no reasonable coroner could have arrived at; in short that the findings on the balance of probabilities were perverse.  The Court detailed the expert evidence which was contradictory.  A number of experts gave evidence, one – Professor Sheppard – was initially instructed by the Claimant who rejected her view. The expert evidence was contradictory but also used slightly differing terminology.  The Court found that although the Senior Coroner should have spelt out his reasoning in greater detail that he was entitled to accept a particular Professor’s view based on the fact that she had greater experience and expertise than that of another doctor who gave his opinion, and that the Coroner was entitled to prefer her view as it had a logical basis to it.

  1. The finding that the Claimant’s conduct obstructed the care of Mrs Parkinson was irrational.

The Court found that the issue of whether the Claimant has obstructed Dr Hijazi’s examination was fully explored at inquest and was rightly an issue that needed to be addressed.  Again, the Court found that the Senior Coroner was entitled to consider all the evidence before of him.  Other Coroners may have made a different finding but the Court found that this Coroner’s assessment of the evidence was not perverse.

  1. The failure to make a Prevention of Future Death Report was wrong in law.

The Court rejected this ground stating that the duty to do a Prevention to Prevent Future Death report only arises where a coroner has a relevant “concern” and forms the relevant “opinion” as per Paragraph 7 of Schedule 5 of the Coroners and Justice Act 2009.  The Court found that on the evidence before the Senior Coroner it was a conclusion that was reasonably open to him.

Analysis:

  • Article 2 will only be engaged in medical cases in limited circumstances. The crucial distinction is between a case where there is reason to believe that there may have been a breach which is a “systemic failure”, in contrast to an “ordinary” case of medical negligence.  The Court were keen to remind us that care should be taken to ensure that allegations of what are in truth allegations of “individual negligence” are not “dressed up as systemic failures”.  The onus on the decision was firmly placed on the Coroner conducting the inquest as being the person best placed to decide whether Article 2 is engaged.
    • Where the state has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, matters such as an error of judgment on the part of a health professional or negligent coordination among health professionals in the treatment of a particular patient are not sufficient of themselves to call the state to account under Article 2.
    • In exceptional cases which go beyond mere error or medical negligence, in which medical staff, in breach of their professional obligations, fail to provide emergency medical treatment despite being fully aware that a person’s life would be put at risk if that treatment is not given. In such a case the failure will result from a dysfunction in the hospital’s services and this will be a structural issue linked to the deficiencies in the regulatory framework.
  • The Coroner’s decision making process is a difficult one to challenge. The test being that decisions and findings by a Coroner would have to be ones that no reasonable Coroner could have arrived at; in short that the findings on the balance of probabilities were perverse.

The clarity Parkinson delivers means that the trial separation between Article 2 and death involving medical treatment lawyers saw in Fernandez has led to a decree absolute, and only in exceptional circumstances will they remain good friends.

 

Contact Lorraine’s clerk

Madeleine Gray on 0113 202 8603

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