Article 2 of the European Convention on Human Rights states:
“Everyone’s right to life shall be protected by law. No one should be deprived of his life intentionally save in the execution of the sentence of a court following his conviction of a crime for which this penalty is provided by law”.
Everyone’s right to life is protected by law in the UK.
Inevitably, deaths by Covid-19 will be the subject of cases, both domestically and internationally, in which it will be argued that the state has failed to prevent death. There will be both civil actions and criminal prosecutions.
Complainants will argue that the response to Covid-19 by the government has been inadequate and even unlawful.
The obligation upon states are onerous. States have to adopt appropriate measures for the protection of patients’ lives (Calvelli & Ciglio v Italy Application No. 32967/96. Judgment of 17.1.02).
There is a duty by the state to take preventative measures:
One particularly noteworthy case was where an individual went rock climbing, made a mistake, and ended up dangling from his rope. A helicopter was called, but failed in the rescue attempt. The individual died before a ground medical team could reach him. It was still held that this duty to take preventative measures includes mountain rescue. So the state has some way to go to take proper steps.
In Budayeva & Others v Russia decided in 2008 the state argued that it should not be liable in the case of a natural disaster. The court thought otherwise and said that there was a positive duty to protect its citizens from natural disaster. In doing so, the court will look at a whole host of factors. This is fertile ground for Article 2 claims due to the pandemic.
One of the key issues will be what steps should have been taken to mitigate the risk.
The duty to investigate after a death is crucial. It’s purpose is to ensure that states are held responsible when people under their responsibility die. The aim of the process is to ensure that other deaths are prevented.
The investigative obligation arrives when it appears that one or other of the substantive obligations in the European Convention may have been violated. This appearance should be arguable, not fanciful.
This investigation is all the more crucial if the deceased may have had family or friends. It involves evidence gathering, but also the substantive aspect of imputing responsibility for the death. It must be prompt and there must be public scrutiny and involvement of those like the next of kin.
For Article 2 to be engaged there will not be simply death from “mere medical negligence” as the case law states, but there has to be systemic failure, such as no ventilator at all in a place or a failure to provide sufficient PPE equipment.
Obviously, there may be an inquest but an Article 2 investigation into Covid-19 will cover investigative duties over multiple deaths with common features to be looked at, so a different type of investigation will be necessary. Important lessons can be learned, especially, to combat further waves of the virus. A public inquiry is one option being called for by deceaseds’ relatives.
As employers need to recognise criminal investigations by the Health & Safety Executive will result where employers may have exposed staff unnecessarily to Covid-19. As we watch the sad and inexorable rise of deaths in the statistics, it is small comfort that there may be after the event investigations and liability. Any sense of justice will feel paltry, but the lessons learned may be valuable.