The European Convention on Human Rights, 1950 (ECHR) was enacted to protect and enforce individual’s human rights against member countries (including Ireland) and their public authorities (including public hospitals). The European Court of Human Rights (ECtHR) in Strasbourg adjudicates on litigation between individuals and member countries. Article 2 of the Convention upholds the right to life. Article 3 prohibits torture, inhuman or degrading treatment. Article 6 states an individual is entitled to a fair trial within a reasonable time.(1) Article 14 prohibits public authorities discriminating between individuals relying upon rights set out in the Convention.(2)

In Ireland, since 2003, individuals may rely on the benefit of invoking and arguing the ECHR directly before domestic Irish Courts against Irish public authorities.(3) Traditionally, to secure compensation in an action based on the tort of negligence in an Irish medical negligence case the plaintiff (i.e. the individual bringing the case) had to prove before the trial Judge that the defendant negligence (fault) caused the injury complained of. However, such a legal action could now possibly include an additional allegation that the defendant public hospital also violated an individual’s human rights.(4)

A plaintiff has only one year to start a claim for compensation due to alleged human rights violations by a public authority. In addition, no other effective remedy in compensation should be available to the plaintiff. If the claim is successful, the trial Judge may award compensation that is considered just and appropriate. Finally, mere individual medical error will not suffice and the injury must have been caused by gross systems failure for the ECHR to be successfully invoked.

The most common remedy sought in medical negligence cases is compensation. A plaintiff incorporating a claim for violated human rights in a medical accident case is likely to be met with the defence that the remedy of compensation is already available and consequently the additional alleged human rights claim is not actionable. The plaintiff might seek to refute this defence by arguing the available remedy (for example, compensation) is not an effective or adequate remedy on its own.

First, a small or derisory award of compensation in a medical accident case incorporating alleged violated human rights could be considered contrary to the substance and meaning of the ECHR. For example, when an individual dies in a public hospital due to medical negligence, Irish law limits compensation to a total of just over €25,000 for all family members’ distress or emotional suffering. Augustus Cullen Law are progressing a number of cases before the High Court arguing this sum is not an effective or adequate remedy for family members and therefore contrary to Article 2 of the ECHR.

Second, if the public hospital delayed paying compensation to the plaintiff, this could be considered violating the provision of an effective remedy.

Human rights law can also be applied in the context of Coroner Inquests. This is the mechanism by which the Irish State can comply with the ECHR Article 2 requirements. The Irish State through the Coroner Inquest process is required by Article 2 to fully investigate the circumstances surrounding an unnatural death in a public hospital. It is submitted that for there to be a full and proper investigation the family have to be enabled to fully participate in the investigation/Inquest which necessarily requires them to have proper legal representation. By way of example, the tragic case of Reece Doyle was before the Dublin City Coroner in 2007. Reece was born early March 2003 with congenital heart disease. He underwent in March 2004 cardiac catheterisation and angiography with a view to percutaneous closure of the Ventricular Septal Defect and balloon dilation of his pulmonary artery band at Our Lady’s Hospital for Sick Children in Crumlin. Augustus Cullen Law represented Reece’s family at the Inquest and secured leading UK paediatric-cardiologist advices to assist the Dublin City Coroner in ascertaining the cause of death. The Dublin City Coroner found Reece’s pulmonary artery ruptured during attempted balloon dilation. The Coroner ruled this tragic death was due to medical misadventure. Reece’s parents requested the Irish State pay their legal costs (legal aid) before the Dublin City Coroner. The Irish State refused their request. Augustus Cullen Law brought to the State’s attention its obligations pursuant to Article 2 of the ECHR. Namely, the Coroner’s Inquest could only be deemed effective if the Irish State contributed toward the investigation costs of a family with modest means and allowed their meaningful participation into finding out the cause of death of their loved one.(5) The Irish State subsequently made an ex gratia (as a favour) payment to Reece’s family.

Subsequently, however, the Supreme Court decided in the Magee case (6) in 2009 that the next of kin of the deceased did not have a right to State funded legal aid in Coroner Inquest proceedings. The Supreme Court reasoned that the Coroner Inquest process merely attempts to establish facts surrounding a death. Whereas, when an individual’s liberty is in issue in criminal proceedings then there is an entitlement to State funded legal aid. Surprisingly, the next of kin did not argue Article 2 of the ECHR before the High Court. It was subsequently raised in the Supreme Court. The next of kin sought to rely upon the McCann case.(7) That case concerned the killing of I.R.A. members by security forces in Gibraltar. The applicants in McCann relied on Article 2 and argued the Gibraltar Inquest was not sufficient to establish the facts surrounding the killing.(8) The Supreme Court noted a key difference in the Magee case was that the next of kin were seeking only legal aid and not challenging the entire validity of the Coroner Inquest process itself.

It could be argued the Magee case did not, in fact, deal with the legal requirements imposed on the State by Article 2 of the ECHR. Therefore it remains perhaps possible for next of kin in a future case to raise the argument of legal aid entitlement before the State authorities in pending Coroner Inquest proceedings. If refused by the State, next of kin could perhaps be advised to challenge the refusal based solely on alleged ECHR Article 2 violation by the State through the Irish Courts.

For further information please contact Michael Boylan.


(1) Doran v Ireland, ECtHR (2003). The European Court of Human Rights held the applicant’s negligence action was not concluded within a reasonable time and that there was an absence of effective remedy. Hrobova v. Slovakia, ECtHR (2006). The European Court of Human Rights held that 13 years at two levels to hear patient’s clinical negligence claim violated Article 6.

(2) For example, a patient in a public hospital that suffered injury in the provision or withdrawal of medical treatment that is different to the treatment provided to other patients for the same illness might have recourse to Article 14 and consequently an action for violation of the patient’s human rights.

(3) Excluding the President, the Oireachtas and the Courts. Privately owned hospitals are also excluded.

(4) Alternatively, an individual could commence a legal action seeking damages for alleged breaches of the Irish ECHR Act, 2003 and not common law negligence. The English Court of Appeal in Savage v NHS (2007) EWCA Civ 1375, allowed the matter proceed to trial to establish whether there had been a violation of Article 2 by the NHS after the death of a patient. In March 2010 Mr. Justice McKay granted a declaration of breach of Article 2 and awarded the daughter £10,000 compensation.

(5) In R v The Secretary of State for Health ex parte Khan (2004) 1 WLR 971 the English Court of Appeal held that the Coroner’s Inquest represented the natural occasion for the effective public judicial investigation into the cause of a death. Such an Inquest amounted to an investigation, which Article 2 of the Convention required and the Secretary of State should consider the appropriate funding of legal representation for the family.

(6) Magee v Farrell & Ors (2009) IESC 60.

(7) McCann & Ors v UK (1995) ECHR 31.

(8) A violation of Article 2 was found but no damages were awarded as the victims were intending a terrorist attack.

07 September 2010

    Gillian and all at Augustus Cullen Law, A million thanks for a great job done. Justice for our son at last!!

    Catherine, Liam & William

    Dear Michael, A great result was achieved because of your efforts and we were truly blessed to have you on our side.

    Kathleen, Medical Negligence Client

    Dear Joice…you are and have been very professional, sympathetic and dignified in all of your dealings with us and I put that down to one simple fact. You listened.

    James, Medical Negligence Client

    Geraldine, Thank you most sincerely for all your hard work and commitment to these children.

    Freda McKittrick, Head of Barnardos Beacon Guardian Ad Litem service

    Neil is an absolute gentleman to deal with – kind, tactful and very efficient. We could not praise him highly enough. He brought us through a horrible time.

    Sean, Medical Negligence Client

    Many thanks again for a job well done. We really appreciate all your hard work and practical advice.

    Corporate client in a commercial litigation matter

    Dear Jamie, You and your team in ACL were so professional, diligent and prompt. I have recommended you and the firm, and will continue to do so

    Lorraine McCarthy

    Gus Cullen and the firm’s approach to addressing the key issues was professional, yet personal, efficient yet attentive.

    BB

    The process is a difficult one and when you deal with people who are so professional and yet genuine/real people, it makes it so much easier... so thanks a million.

    Julie

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