In the Lopes de Sousa Fernandes v. Portugal judgment of 19 December, the Grand Chamber made an attempt to clarify the Court’s case law in the area of medical negligence. Traditionally, the Court has examined cases of death resulting from alleged medical negligence almost exclusively from the viewpoint of the procedural obligations under Article 2. Those obligations require the State to set up an effective judicial system to determine the cause of death and to hold those responsible accountable (e.g. Calvelli and Ciglio v. Italy). In recent years, the Court seemed more and more willing to also examine such cases from the viewpoint of the substantive obligations under this provision. Particularly in the Chamber judgment in the Lopes de Sousa Fernandes case, the Court interpreted these substantive obligations in an expansive manner, which arguably would have turned the Court into “a first- and last-instance medical malpractice court” (joint dissenting opinion of Judges Sajó and Tsotsoria). The Grand Chamber, however, didn’t feel like opening the floodgates and decided to overturn the Chamber judgment, severely limiting the scope of the State’s substantive obligations in this area.
Facts and judgment
The applicant’s husband died in March 1998 following a number of complications after a nasal polypectomy (i.e. the removal of nasal polyps). According to the applicant, her husband’s death resulted from negligence of the hospital staff in the diagnosis, treatment and decision to discharge him from hospital. In the Chamber judgment, besides a procedural violation, the Court also found a violation of the substantive aspect of Article 2 because it considered that “the lack of coordination between the [ear, nose and throat] department […] and the hospital’s emergency department attests to failings in the public hospital service” which “deprived [the applicant’s husband] of the possibility of access to appropriate emergency care” (par. 114). 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. The present blog post will only focus on the substantive aspect of the case.
“Mere” medical negligence vs. “denial of access to life-saving emergency treatment”
In recent years, the Court found substantive violations of Article 2 in a number of medical negligence cases. In Mehmet Şentürk en Bekir Şentür v. Turkey, the death of a pregnant woman resulting from the refusal to perform an emergency surgery because of her inability to pay the medical fees amounted to a substantive violation of Article 2. In Asiye Genç v. Turkey, the Court found a substantive violation of Article 2 in a case where a newborn baby with respiratory problems had died as a result of the refusal to admit him to a number of public hospitals owing to a lack of space or adequate equipment in their neonatal units. The Court also found a substantive violation of Article 2 in the case of Elena Cojocaru v. Romania on account of the death of a woman and her newborn baby as a result of the public hospital’s refusal to perform an emergency C-section, thus having to instead transfer her to another hospital, 150 km away. Finally, in Aydoğdu v. Turkey, the Court found a substantive violation of Article 2 in a case concerning the death of a premature baby due to a structural dysfunction in the organisation of prenatal care in the region concerned.
In the Lopes de Sousa Fernandes judgment, the Grand Chamber attempts to reconcile its traditional reluctant approach to cases of medical negligence with the more demanding substantive positive obligations from these recent cases by distinguishing between cases of “mere” medical negligence and cases concerning “denial of access to life-saving emergency treatment”. In cases of “mere” medical negligence, the substantive obligations under Article 2 merely require the setting up of a regulatory framework to protect the lives of patients and the adoption of implementation measures to ensure the effective functioning thereof (par. 188-189). The Court will only find a violation of Article 2 in these cases if it is shown that deficiencies in the regulatory framework have operated to the patient’s detriment (par. 188).
It is only in “exceptional circumstances” – clustered together under the notion of “denial of access to life-saving emergency treatment” – that the State can be held to account for the acts and omissions of health-care providers (par. 190):
“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 Şentürk and Bekir Şentürk…). 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 Genç and Aydoğdu…).”
The Court however admits 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” (par. 193). For this purpose, the Court holds that four cumulative criteria must be met for a case to be considered as falling in the latter category:
“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 (…).
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 (…).”
Unfortunately for a Grand Chamber judgment that is meant to bring clarity in the Court’s case law, these criteria give rise to a number of internal inconsistencies within the judgment. For example, as held above, the scope of substantive obligations in cases of “mere” medical negligence is restricted to the putting in place of an effective regulatory framework. One may thus wonder what the added value of this “exceptional” category of cases is, if the Court similarly examines them through the lens of the regulatory obligations by introducing the fourth condition. Paradoxically, the Court thereby seems to provide a lower level of protection than in cases of “mere” medical negligence, in which the Court does not require the first and second condition to be fulfilled in order for it to find a substantive violation of Article 2. Also, the fact that the Court uses a single set of criteria to identify cases involving “denial of access to life-saving emergency treatment” is at odds with the fact that, earlier in the judgment, the Court held that there are two distinct types of such cases. In doing so, the Court equates cases of the Mehmet Şentürk and Bekir Şentürk type with cases of the Asiye Genç/Aydoğdu type. It would have therefore made more sense for the Court to present these conditions as alternative rather than cumulative ones.
Having set out the general principles, the Court then turned to applying them to the case at hand. According to the Court, as the conditions to be considered as a case of “denial of access to life-saving emergency treatment” were not fulfilled, the case had to be considered as one of “mere” medical negligence. Given the fact that there were no apparent shortcomings in the regulatory framework, the Court found that there had not been a substantive violation of Article 2.
While consolidating the case law concerning “denial of access to life-saving emergency treatment”, developed in very serious cases like Mehmet Şentürk and Bekir Şentürk, 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. In doing so, the Court proceeds on the questionable assumption that procedural fairness is necessarily instrumental to better substantive outcomes. A procedural approach to what essentially concerns a substantive human right – the right to life – is however 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. While arguably the Chamber judgment went too far in extending the State’s substantive obligations in cases of “mere” medical negligence – all but imposing an obligation of results on the State to prevent any instance of medical negligence – one can wonder if the Grand Chamber judgment did not go too far 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.