COVID-19 Symposium: Article 2 ECHR’s Positive Obligations–How Can Human Rights Law Inform the Protection of Health Care Personnel and Vulnerable Patients in the COVID-19 Pandemic?

[Elizabeth Stubbins Bates is a Junior Research Fellow in Law at Merton College, University of Oxford.]

In the shock and fear of the COVID-19 pandemic, colleagues have begun to reflect on international human rights law’s continued importance: with analyses of due diligence, the right to life and right to health; derogations under the European Convention of Human Rights (ECHR) (also see page 2 here); and a proposal that human dignity inform current policy and future legislation. The British Medical Association, the Royal College of Nursing, and the editor of The Lancet have called on the UK government urgently to ensure the supply of sufficient personal protective equipment (PPE) to health care personnel working with COVID-19 patients, amid reports that the PPE available falls short of World Health Organization (WHO) standards. In the same week, the UK’s National Institute for Health and Care Excellence (NICE) has produced a hurried guideline on patients’ eligibility for critical care in the context of scarce resources, which has led to concern among lawyers working with people with disabilities. In both these contexts, international human rights law seems absent from policy and practice, despite continuing to bind states in their response to COVID-19.

This post analyses the case law of the European Court of Human Rights (ECtHR) on states’ positive operational obligations to protect life under Article 2 of the ECHR, and offers concrete arguments for the protection of health care personnel and vulnerable patients through this human rights lens.

Non-Derogable Obligations to Protect the Right to Life

Article 2 is one of the ECHR’s most fundamental Articles. In peacetime, it is non-derogable, meaning that no ‘public emergency threatening the life of the nation’ can permit the suspension of Article 2 obligations. Article 2(1) requires that ‘Everyone’s right to life shall be protected by law…’ and that states must refrain from the unlawful deprivation of life within their jurisdiction (the negative obligation). The ECtHR has held that Article 2 also requires states to safeguard the lives of those within its jurisdiction (LCB v United Kingdom, para 38). This entails positive obligations, which have subsequently been extended to obligations to prevent and obligations to investigate unlawful deprivation of life under Article 2.

The case of Osman v United Kingdom first set out the positive obligation ‘in certain well-defined circumstances… to take preventive operational measures to protect an individual whose life is at risk…’ (para 115). This case (and the early development of the principle) was confined to threats to an individual’s life by the criminal acts of a private individual. Osman held that for three reasons (policing challenges, the unpredictability of human conduct, and operational choices between priorities and resources) positive obligations must not be interpreted to impose an ‘impossible or disproportionate burden’ on the national authorities (para 116). This phrasing does not offer expansive excuses to states which invoke resource constraints (see below). There was no violation on the facts of Osman because the positive operational obligation is triggered only when the authorities know or should have known of the threat to an individual’s life, and this was not established.

The ECtHR has expanded the range of factual circumstances in which Article 2’s positive operational obligations apply: to the need for planning to protect life in counter-terrorism operations (McCann v UK), for steps to prevent the recurrence of natural disasters (Budayeva v Russia), and the provision of emergency response following an accident (Furdik v Slovakia, cited in Lopes de Sousa Fernandes). In Oneryildiz v Turkey, the Grand Chamber ruled that positive obligations apply in the context of ‘any activity, whether public or not, in which the right to life may be at stake’ (para 71). In that case, 39 people had died following a landslide from a waste collection site where there had been a methane explosion. The Grand Chamber found that the state had not prevented the unlawful construction of the dwellings which were destroyed by the landslide, and that it had disregarded expert advice, allowing the site to operate in breach of health and safety legislation. Osman’s actual or constructive knowledge requirement was easily reached, and its caveats on scarce resources did not prevent the Grand Chamber from finding a violation.

Subsequently, in Stoyanovi v Bulgaria, the ECtHR set a framework for Article 2’s positive obligations: first to establish a framework of laws and procedures to protect life, and second to take preventive operational measures. The latter duties only applied to soldiers experiencing ‘“dangerous” situations of specific threat to life which arise exceptionally from risks posed by violent, unlawful acts of others or man-made or natural hazards’.

Do Article 2’s Positive Obligations Apply in the COVID-19 Pandemic?

Emphatically, yes. As Article 2 is non-derogable (except for deaths resulting from lawful acts of war), ECHR states parties cannot suspend the negative or positive obligations which arise under Article 2 during the current emergency. Even though the pandemic is a ‘natural hazard’, states have been on notice since January 2020 of the emergence of the novel coronavirus, so they knew or should have known that it could constitute a threat to life in their own jurisdictions. That actual or constructive knowledge threshold for the positive operational obligations is easily passed. ECHR states parties facing COVID-19 have an obligation to establish a framework of laws and procedures to protect life (in the UK context, the Coronavirus Act 2020 and the regulations passed under the Health Protection (Coronavirus Restrictions) Regulations 2020 partially fulfil this); and to take preventive operational measures. I argue that preventive operational measures apply in at least the two specific situations below.

How Might Article 2’s Positive Obligations Protect Health Care Personnel?

The ECtHR case law on health care focuses on medical negligence rather than pandemic disease. Lopes de Sousa Fernandes v Portugal establishes that in the vast majority of negligence cases, the state has only the obligation to establish a regulatory framework for professional standards. However, in two sets of ‘very exceptional circumstances’, the state has positive operational duties to protect life.  These are a) where life is ‘knowingly put in danger by denial of access to life-saving treatment’, and b) where a ‘systematic or structural dysfunction in hospital services results in a patient being deprived of access to life-saving emergency treatment, and the authorities knew or ought to have known about this risk and failed to undertake the necessary measures to prevent that risk materializing…’ (para 192). States will have a broad margin of appreciation (see para 175) on ‘scarce resources’ and ‘difficult choices’.

Ostensibly, there is nothing here to protect health care personnel whose PPE is insufficient to confer protection from coronavirus infection: the exceptions in Lopes de Sousa Fernandes imply a decision to deprive individuals of ‘access to life-saving treatment’, rather than PPE. Yet this is where Stoyanovi remains relevant. The risks of coronavirus infection, serious illness and possible death are not those which doctors, nurses, paramedics and others will face in the course of their normal duties. They are instead ‘“dangerous” situations of specific threat to life… [from a] natural hazard’. Further, the flexibility and expansiveness of the ECtHR case law might extend to a ‘systematic or structural dysfunction’ in the provision of life-saving PPE, to draw on Lopes de Sousa Fernandes’s second exception.

In UK domestic law, the cases of Long and Smith (on the systemic failure to provide soldiers with iridium phones, and the failure to provide sufficient protection against improvised explosive devices) are relevant by analogy and also engage Article 2’s positive obligations.

There may be practical limitations with the global supply chain, hinting that full provision may be ‘impossible’, but this does not preclude the positive operational obligation, including to plan for pandemic response. Reports indicate a failure appropriately to stockpile protective eyewear as early as 2017, when the cost of storage was deemed disproportionate to the risk of pandemic influenza. Resource constraints and the current emergency do not give states carte blanche to disregard their preventive operational obligations under Article 2 ECHR. Once the actual or constructive knowledge threshold is passed, the positive obligation is triggered; subject to any evidence adduced on ‘impossible or disproportionate burden’ and a margin of appreciation on how states choose to allocate resources in the implementation of the positive obligation (see Brincat v Malta on ‘choice of means’).

How Might Article 2 Positive Obligations Protect Vulnerable Patients?

Amid concerns that the exponential growth in infection rates will quickly overwhelm the health service, the NICE rapid guideline adapts a ‘frailty’ scale usually used for patients with dementia to assess whether patients might be eligible for critical care. The scale is not to be used ‘in younger people, people with stable long-term disabilities (for example, cerebral palsy), learning disabilities or autism’, who should receive an ‘individualised assessment’. ‘[C]omorbidities and underlying health conditions’ should be considered ‘in all cases’ (p.6). ‘Human rights’ are absent from the guideline, although there is a responsibility to ‘have due regard to the need to eliminate unlawful discrimination…’ (p.2).

While individual clinical decisions at the end of life are regulated only by Lopes de Sousa Fernandes’s positive framework obligation, there is no suggestion in Article 2 jurisprudence that the positive operational obligations to protect life can be prospectively disapplied as a matter of national guidance for patients with ‘frailty’, ‘comorbidity and underlying health conditions’. This guideline risks violations of Article 2 ECHR in individual cases, possibly read alongside Article 14 (non-discrimination in the enjoyment of ECHR rights).

Where such guidance appears in an under-funded health service which faces COVID-19, the second exception in Lopes de Sousa Fernandes becomes relevant: that of a ‘systematic or structural dysfunction in hospital services’ which might result in patients ‘being deprived of access to life-saving emergency treatment’. Previously, in Asiye Genç v Turkey, the ECtHR had found a violation of Article 2 where a newborn baby was denied admission to a neonatal intensive care unit. There were insufficient incubators, and the state ‘had not taken sufficient care to ensure the smooth organisation and correct functioning of the public hospital service’. This situation was ‘not linked solely to an unforeseeable shortage of places arising from the rapid arrival of patients’. The judgment has chilling relevance to COVID-19, and underlines Article 2’s continued importance in the current emergency. It suggests that the ECtHR would be rigorous in its assessment of states’ past and present compliance with Article 2, and that deference to the current emergency might be limited. COVID-19 does not permit states to disregard positive operational obligations to protect life under Article 2. Human rights law continues to be relevant to states’ responses to this pandemic. Specifically, the UK has positive operational obligations to take steps to protect life, which will be adjudicated subject to the margin of appreciation. These obligations apply to much-needed PPE for health care personnel, and to individuals with underlying health conditions who might otherwise be denied life-saving treatment.