Article 2 inquests: when will the investigative obligation of the state be engaged?

Article 2 of the European Convention on Human Rights is the “right to life”. Where this article is triggered following a death, a broader inquiry into the death occurs. Insurers often become involved in covering the legal costs of representation at inquests.

Article 2 of the European Convention on Human Rights is the “right to life”. Where this article is triggered following a death, a broader inquiry into the death occurs. Insurers often become involved in covering the legal costs of representation at inquests. Those inquests which trigger an Article 2 investigative obligation can be expensive and time consuming so it is to be welcomed that the Divisional Court in R (Parkinson) v HM Senior Coroner for Kent has reaffirmed the jurisprudence concerning such events. This should limit the circumstances where such Article 2 inquests (as they are often referred to) arise.

The facts of this case are not unique. Mrs Parkinson, aged 91, was brought to A&E in 2011 where staff identified she was near death and that little could be done to save her. Some differences of opinion were aired by a family member (the claimant in the subsequent judicial review proceedings). Sadly Mrs Parkinson died not long after arriving at hospital.

The inquest

The inquest was held in 2016. The claimant argued that the investigative obligations under Article 2 were engaged. The coroner disagreed and found no evidence that Mrs Parkinson had been neglected by the hospital team. The cause of death was found to be “bronchopneumonia combined possibly with right lung pulmonary thrombi”. Even though the claimant pressed for a finding that the death had been an unlawful killing by gross negligence manslaughter, the outcome was one of natural causes.

Judicial review

In the proceedings that followed the inquest the claimant sought to quash the outcome of the inquest or change the Record of Inquest on the following grounds:

  1. It was wrong in law to hold that the Article 2 enhanced investigative duty did not arise.
  2. The finding regarding the medical cause of death was irrational.
  3. The conclusion of “natural causes” did not constitute a sufficient discharge of the coroner’s duties and/or was irrational.
  4. The finding by the coroner that the claimant’s conduct obstructed the care which would otherwise have been provided to Mrs Parkinson was irrational.
  5. The coroner should have made a Prevention of Future Death (‘PFD’) Report.

Article 2

The Divisional Court affirmed that, in general, the courts in this country should follow the jurisprudence of the European Court of Human Rights and only depart from it in exceptional cases. The court gave great weight to the case of Fernandes v Portugal, which recently restated the principles around Article 2 as follows:

  • Article 2 imposes both substantive positive obligations and procedural obligations on the state.
  • The primary substantive positive obligation is to have a regulatory framework compelling hospitals to adopt appropriate measures for the protection of patients’ lives.
  • The primary procedural obligation is to have a system of law in place by which individual failures can be the subject of an appropriate remedy: by having a criminal justice system that can hold to account a healthcare professional who causes death by gross negligence; and a civil justice system which makes a claim for negligence available.
  • The enhanced duty of investigation, requiring 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.
  • 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 judgement on the part of a health professional or negligent coordination among health professionals in the treatment of a particular patient are not sufficient to call the state to account under Article 2.
  • However, there may be exceptional cases (which go beyond mere error or medical negligence) where 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.

Applying those principles to the facts of the present case there was nothing that triggered an Article 2 investigative obligation. An alleged error in diagnosis or an alleged delay in performing a particular medical intervention could not be equated to cases concerning a denial of healthcare. This principle extended to “do not resuscitate” decisions, which along with decisions about administering (or not) CPR, were matters of clinical judgement.

The coroner was entitled to reach the view that there was no systemic issue which arose and no arguable breach of the substantive obligations in Article 2.

Challenge to the findings of fact

Considering the challenges to the findings of fact under grounds 2 and 3, the coroner had considered the evidence of five pathologists, and accepted the cause of death opined by an eminent. There was ample evidence for the coroner to conclude that Mrs Parkinson was in an “advanced stage of dying” on her admission to hospital and that no treatment would have affected the outcome. The coroner was also entitled to find as he did that there had been obstruction of the examination of Mrs Parkinson by the claimant and that his finding in that regard was not irrational.

In the circumstances a PFD report was not required.


This decision by the Divisional Court makes clear that an Article 2 investigative obligation by the state will not be engaged if what is being alleged is no more than medical negligence by healthcare staff, where a patient is considered to have received inappropriate or incorrect treatment or if that treatment is delayed. Only in exceptional circumstances would the courts in this country decline to follow the jurisprudence of the European Court of Human Rights. The jurisprudence stated in the case of Fernandes was to be followed and in this case, on the facts, there had been no arguable breach of Art 2.
In ordering the claimant to meet the costs of both the coroner and the interested parties, which is quite an unusual outcome, the Divisional Court has signalled a clear interest in preventing speculative challenges to decisions concerning the use of Article 2 investigative obligations.

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