‘Mere negligence may breach Art 2 in NHS hospital cases’

“In the Chamber Judgment (currently available only in French) in the case of Lopes de Sousa Fernandes v Portugal (App No 56080/13) decided just before Christmas, the European Court of Human Rights (ECtHR) held that there was both a substantive (by 5 votes to 2) and a procedural (unanimous) violation of Article 2 in the case of the death of the Applicant’s husband in circumstances where there was a negligent failure to diagnose meningitis shortly after (successful) nasal polyp surgery, even though that negligent failure was not necessarily causative. This very surprising outcome is important, and may be seen as a radical departure from the established case law of the Court on the necessary threshold for establishing an Article 2 violation in State (ie NHS) hospital cases. It also underlines the increased importance of informed consent in clinical negligence cases when viewed from a human rights perspective …” (more)

[Jeremy Hyam, UK Human Rights Blog, 12 January]

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