Medical inquests: Article 2 right to life rarely applicable

June 21, 2018

Coroners’ Inquests: Ordinary clinical negligence insufficient to engage Article 2 of the European Convention on Human Rights

In the 2015 Chamber judgment in Lopes de Sousa Fernandes v Portugal (App No 56080/13), the European Court of Human Rights (ECtHR) held that there was a breach of both the substantive aspect of Article 2 of the Convention (the right to life) and a breach of the procedural investigative aspect of Article 2. The Applicant had complained that her husband’s death from post-operative meningitis in a state hospital, had been caused by negligence and carelessness on the part of the medical staff.

In the December 2017 Grand Chamber judgment in Fernandes (ECHR 395(2017)), the ECtHR held that although there had been a violation of the procedural limb of Article 2, there had been no violation of the Article 2 right to life. The Court observed that the alleged fault had not gone beyond mere error or medical negligence, or that those involved had not failed to provide emergency medical treatment to the deceased, despite being aware that the deceased’s life was at risk if such treatment was not given. Further, the Court did not have any evidence before it to suggest that there had been structural or systemic failings in the healthcare services in question.

Click here to read the full case note by Dr Peter Ellis.

Related barristers