The role of the right to life in respect of deaths caused by negligence in the healthcare context

TL;DR

The paper explores whether deaths from medical negligence can be considered a violation of the right to life under European human rights law.

Contribution

It introduces a framework for determining when an operational duty to save life arises in healthcare negligence cases.

Findings

The existence of an operational duty depends on the assumption of responsibility and nature of risk.

Surrounding circumstances should be considered when assessing violations of the right to life.

There is a need to use the right to life more to hold public bodies accountable for healthcare negligence.

Abstract

This article investigates the question of whether a death caused by negligence in the healthcare context is capable of violating the right to life under Article 2 of the European Convention on Human Rights. This provision imposes extensive positive obligations upon Contracting States, including an operational duty to take reasonable steps to save a life that they know, or ought to know, is at risk. This article addresses the question of exactly when such an operational duty arises, with particular focus on the healthcare context in which deaths caused by medical negligence have not traditionally been regarded as amounting to violations of the right to life. This article argues that two key factors in determining the existence of an operational duty to save life are the assumption of responsibility and nature of risk. It also argues for the need to take surrounding circumstances into account and for an increased use of the right to life in holding public bodies to account for deaths caused by negligence in the healthcare context.