A reminder: Article 2 obligations do not apply to medical negligence claims in private care home settings

A High Court decision serves as a reminder that the engagement of Article 2, as set out in Fernandes and Maguire does not apply in the setting of a private care home, and that the bar for the application of Article 2 in cases of medical care is very high and not simply when there is medical negligence. 

The claim concerned the deceased, Paul Sammut, who suffered from chronic schizophrenia. For large parts of his life, he was detained under section 3 of the Mental Health Act. Mr Sammut was discharged from his detention in 2018 to a nursing care home operated by Next Steps. Mr Sammut remained at Next Steps until his death in 2019 where he died from complications related to his clozapine medication.

The claimants in this civil claim for damages under Human Rights Act 1998 (HRA) sought to rely upon an allegedly poor standard of health care in a private care home as engaging Article 2 obligations. However, as the judge found, the private provider running the care home (Next Steps) was not a public authority under section 6 HRA and so owed no duty to uphold Convention rights.  Additionally, the matter in issue was the quality of the medical care provided which, even if delivered negligently (as was alleged), would not have engaged any operational obligation owed to the deceased.

The engagement of Article 2

The judge made it clear that “very exceptional circumstances” would be required before the State could become responsible for the acts and omissions of health care providers. He adopted the following passages from Fernandes:

"191. 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 lifesaving emergency treatment. It does not extend to circumstances where a patient is considered to have received deficient, incorrect or delayed treatment."

192. 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."

The judge explained that in order to fall within the first exceptional category the medical professional must have gone beyond mere medical negligence and must have been "fully aware that the patient's life was at risk if treatment was not given" and that for the second category to apply the dysfunction must be "genuinely identifiable as systemic" and so go beyond "individual instances where something may have been dysfunctional in the sense of going wrong or functioning badly".

The judge concluded that the circumstances of Mr Sammut’s death while potentially indicative of medical negligence did not meet the “exceptional circumstances” required to engage the Article 2 rights, as set out in Fernandes and Maguire. There was no evidence that Mr Sammut’s life was knowingly put at risk or that there was a systematic failure in the healthcare provided. 

For further commentary on the case, read Bridget Dolan KC’s blog post here.

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