Medical Negligence, Systemic Deficiency, or Denial of Emergency Healthcare? Reflections on the European Court of Human Rights Grand Chamber Judgment in Lopes de Sousa Fernandes v. Portugal of 19 December 2017 and Previous Case-law.

Abstract

On 19 December 2017 the Grand Chamber of the European Court of Human Rights (ECtHR) delivered a judgment in the Lopes de Sousa Fernandes v. Portugal case. The judgment may be described as one of the hard cases dealing with a healthcare context, as it aimed to clarify the scope of positive substantive state obligations under the European Convention on Human Rights and the conditions of international responsibility. This article explores the judgment against the wider background of the previous case-law of the Court. It focuses on the question of the classification of healthcare problems into three categories: medical negligence, systemic deficiency, and denial of emergency healthcare, and reflects upon their ratione materiae justiciability before the European Court of Human Rights.