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Briefings | Thu 10th Sep, 2020
THE HUMAN RIGHTS ACT & CLINICAL NEGLIGENCE – The Return?
There are a number of clinical negligence claims against the NHS that are based upon, or supported by, alleged breaches of the Human Rights Act 1998 (“HRA”). The acts and omissions of those employed by the State in the field of healthcare may engage the European Convention on Human Rights (“ECHR”). Section 7 HRA has a relatively wide definition of who can be a ‘victim’ for the purposes of launching a HRA claim. Moreover, causation under the ECHR is regarded as a lower obstacle to surmount than in the common law.
Lord Roger summed up the general position under the HRA back in Savage v South Essex Partnership NHS Foundation Trust  UKHL 74: “… the duty to protect the lives of patients requires health authorities the hospitals for which they are responsible employ competent staff and that they are trained to a high professional standard. In addition, the authorities must ensure that the hospitals adopt systems of work which will protect the lives of patients. Failure to perform these general obligations may result in a violation of Article 2.” We will return to what systemic failure means later in this article.
by Saleem Khalid and Dominique Smith
Missed Meningitis: clinical examination performed without accounting for broader medical context fell below reasonable standard
Consider the following circumstances underpinning a claim in clinical negligence: a fifteen-month-old child is taken to a GP; the GP examines her, suspects meningitis and sends her under blue lights to hospital; on examination in hospital, however, tonsillitis is diagnosed and the child is discharged without a lumbar puncture; days later she is readmitted, a lumbar puncture is performed and a serious bacterial infection is identified; she suffers a stroke as a result of a bacterial meningitis leaving her with a permanent neurological defect.
At first glance it looks as though establishing a breach of duty ought not to present significant difficulty. If the GP was in a position to suspect meningitis, which was the ultimate diagnosis, while the doctors in the hospital missed it, an instinctive prediction might be that this was a case which would never reach trial (at least on liability). As Mr Justice Johnson said, however, when these facts came before him in the case of SC (by her mother and litigation friend AC) v University Hospital Southampton NHS Foundation Trust  EWHC 1610 (QB) last month, “it is much more complicated than that”.
by Thomas Yarrow
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