Article 2 Inquest or not Article 2 Inquest – that is the question

The recent case of R (Parkinson) v HM Senior Coroner Kent, Dartford and Gravesham NHS Trust and Dr Hijazi [2018] EWHC 1501 (Admin) is a welcome clarification for those involved in Inquests following the provision of medical treatment.

10 September 2018

Author: Francesca Lowry
Practice Area: Healthcare
Sector: Healthcare

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Background

The Inquest touched on the death of Mrs Kathleen Parkinson, at the age of 91, in the A&E Department of Darent Valley Hospital, Dartford on 9th January 2011. Mrs Parkinson became unwell and was brought to hospital by her son. She was assessed by a nurse and middle grade doctor. The middle grade doctor diagnosed that Mrs Parkinson was in agonal breathing and was dying and informed her son that no treatment would be beneficial to her. Her son, however, did not accept this and upon realising no treatment would be provided, he reportedly became obstructive and made threats to the doctor. Mrs Parkinson died later the same day.

Inquest

At the outset of the Inquest in May 2016, the Coroner stated that he did not consider that he was required to hear the Inquest pursuant to Article 2 of the European Convention of Human Rights, but would keep this under review.At the conclusion of the Inquest, he revisited his earlier position and confirmed that he remained of the view that the Inquest was not an ‘Article 2 Inquest’. He also refused a request to provide a Report on the Prevention of Future Deaths (Coroners and Justice Act 2009 in England), stating that he did not accept that there was any failure to diagnose and treat Mrs Parkinson given the particular circumstances of the case.

In his findings, the Coroner identified that there were two main areas of dispute at the Inquest:

  1. The cause of death; and
  2. The diagnosis and treatment of Mrs Parkinson while she was in hospital.

Judicial Review

Mrs Parkinson’s son sought leave to initiate judicial review proceedings on foot of the Coroner’s findings and permission was granted. He challenged the Coroner’s decision on the following 5 grounds:

  1. The Coroner had misinterpreted the applicable law in deciding that an Article 2 enhanced investigative duty did not arise;
  2. The Coroner’s finding regarding the cause of death was irrational;
  3. The Coroner’s conclusion that the patient died of natural causes did not discharge his duties under the 2009 Act, or any other legislation or common law provision and, further it was irrational;
  4. The conclusion that the conduct of Mrs Parkinson’s son obstructed the care that otherwise would have been provided to Mrs Parkinson was irrational; and
  5. The Coroner failed to make a Prevention of Future Death Report, which, it was submitted, could only have arisen from a misunderstanding of his duty.

The claim was dismissed on all grounds. Lord Justice Singh, the presiding Judge, availed of the opportunity to re-state the law on Article 2, specifically referring to the case of Lopes De Sousa Fernandes v Portugal, which is among the most recent case on this issue, the Judgment having been handed down on 19th December 2017.

Helpfully, to all involved in Inquests, Lord Justice Singh includes, in his judgment, a summary of the relevant principles on Article 2, as follows:

“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….

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.”

Lord Justice Singh’s commented that there may be cases which go beyond “mere error or medical negligence”, which will fall into the category of “a structural issue linked to the deficiencies in the regulation framework”, thus elucidating the crucial distinction between a “systemic failure” or an “ordinary case” of medical negligence, the latter not attracting an Article 2 Inquest.

Interestingly, Lord Justice Singh reminds us that we should take care to ensure that allegations of ““individual negligence” are not “dressed up as systemic failures””, explaining that “an error of judgment… or negligent co-ordination” and are not sufficient to call the State to account under Article 2.

Lord Justice Singh’s summary provides a helpful clarification for lawyers and properly interested persons, regarding the high threshold which must be reached for an ‘Article 2 Inquest’ to be held. It should also provide clinicians with some comfort that where there is an instance of ‘ordinary’ medical negligence, the Coroner is not required to hold an ‘Article 2 Inquest’.

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