Military analogies have been deployed with vigour in the early weeks of the United Kingdom’s battle against COVID-19. Initially the government told the public to ‘keep calm and carry on’. When the lockdown came, the Prime Minister ‘enlisted’ us all to slow its spread. A ‘war cabinet’ was formed and those in the health and social care sectors, who would be most regularly exposed to the virus, were referred to as being on the ‘frontline’ of the battle.
The aptness of this final comparison carries through in multiple ways. Staff in the NHS are undoubtedly performing a public service on par with that of the armed forces. In combatting a contagious and deadly disease, they are putting themselves into grave danger in order to protect the public. Also akin to their military counterparts in recent conflicts, many of them are performing their duties without the correct protective equipment. And so, it is unsurprising that we should look to the cases involving equipment shortages and soldiers as pathfinders for any future litigation concerning the right to life and personal protective equipment (PPE). Any litigation on this issue, however, is going to bring a court perilously close to issues of politics, policy and failings that may have been caused by government strategy. This post offers a brief summary of how this may play out (in UK Courts) concluding that there is both an arguable case for the violation of the right to life and, by virtue of this, a corollary obligation to conduct Article 2 compliant investigations into the death of any health or care worker suspected of dying from COVID-19.
The Positive Obligation within the Right to Life
Alongside a prohibition on the state from arbitrarily taking life, Article 2 ECHR includes a positive obligation to take preventative measures to safeguard life. This includes: 1) an adequate framework of laws and regulations to protect life (R (Middleton) v. West Somerset Coroner); 2) an operational requirement to take steps to protect life where there is a real and immediate risk of death (Öneryıldız v. Turkey); and 3) an investigative responsibility where the right to life may have been breached by an act or omission (Armani Da Silva v. the United Kingdom.
As Elizabeth Stubbins Bates and Natasa Mavronicola have argued elsewhere, the most relevant aspect of the right in respect of PPE is the second component (although see James Robottom who makes a strong case for how it could fall within the first category). PPE shortages have been reported across the entire spectrum of appropriate uniforms, including shortages in gloves, masks, gowns and eyewear. There have been reports of staff resorting to taping clinical waste bags around their legs and aprons around their heads. Some healthcare professionals are threatening to quit unless they are appropriately provisioned, while others are said to be staying at home rather than expose themselves to the virus. In one tragic case, a doctor who had given a moving plea for adequate PPE subsequently died.
The government response has come in waves. The Health Secretary initially confirmed that while there were challenges, more equipment would be available soon and would reach all healthcare workers. When the complaints continued, he moved to allay fears by citing that the problem was not a shortage of equipment, but the delivery of supplies. The army was subsequently drafted in to assist in the logistical response. The Home Secretary and Business Secretary then issued qualified apologies – providing their sympathy to anyone who felt that they had been let down by the government.
While the analogies between a military response in conflict and the role of medical staff in treating patients with COVID-19 are often trite and ill-suited, the situation does share some similarities. Both circumstances necessitate swift action and decision-making, as well as a realistic appraisal of what the state can do to combat an unpredictable adversary. The similarities continue with regards to the seemingly considerable shortages in PPE and how military agents have been equipped in recent conflicts. The first British soldier killed in the invasion of Iraq, Sgt Steve Roberts, was accidentally shot by one of his comrades while manning a checkpoint. He was not wearing the necessary enhanced combat body armour as he had been asked to remove it four days before his death due to widespread shortages. The Iraq Inquiry would hear evidence that, at one point, up to 50% of soldiers in theatre may not have been provided with the correct armour (ceramic plates). While much of this would come to light during inquests into soldiers’ deaths, it would be in a lack of appropriate armoured vehicles where their families would make a breakthrough in litigation.
In Smith v Ministry of Defence, the families of a number of servicemen killed in Iraq launched a series of claims against the MoD. While they were brought in both negligence, and human rights law, the tortious aspect of the litigation may be more difficult for any PPE litigant as the Coronavirus Act 2020 contains provisions limiting liability in respect of claims based in tort. The relevant aspect of the litigation therefore relates to Article 2 where the claimants asserted that the state had failed to adequately equip the soldiers in light of the real and immediate risk to their lives. They specifically cited the fact that the soldiers were travelling in a ‘Snatch Land Rover’ – a vehicle that, while favoured by some military commanders, was so light and susceptible to damage from enemy explosions that the army had forbidden its use in south Armagh during the Troubles. The MoD attempted to have the case struck out and this aspect of the litigation reached the Supreme Court. In the leading judgment from Lord Hope, a test emerged for how to navigate Article 2 cases concerning the positive obligation that were intimately linked to policy-related decision-making.
Navigating the ‘middle ground’
Lord Hope proposed that for any claim to continue forward, it would have to fall into a middle-ground that avoided high-level (para 76) decisions on procurement that were ‘closely linked to the exercise of political judgment and issues of policy’ and more intimate decision-making (para 76) by military commanders who were actively engaged in contact with the enemy. If this test is applied to PPE shortages it may prove difficult for claimants to find an appropriate basis to make their argument. For instance, accusations of initial government lethargy in procuring new equipment and engaging the private sector in this endeavour may be difficult to sustain. At the lower-level, it also suggests that individual errors in hospital management and localised guidance of who is to wear what equipment and when, are unlikely to form an acceptable application of the Article 2 positive obligation.
When Lord Hope sculpted this test, it was clear that one would have to be very precise to thread the needle of the ‘middle-ground’ and engage a viable Article 2 argument (para 68 and 78). To date, only one further case has given application to the test (although this may be due to the MoD successfully settling cases brought against it). Long v Ministry of Defence involved a claim by the mother of a member of the Royal Military Police who had been killed by a mob in June 2003. The victim’s unit had been without a satellite phone at the time of the attack and so had been unable to call for assistance. The claimant was seeking an independent and thorough investigation into the event and was therefore required to demonstrate that there had been at least a potential breach of the positive obligation. Her argument was not that there had specifically been an equipment shortage, as her son’s unit had been provided with an iridium satellite phone. Instead, it was premised on the fact that it was common practice within the battle group for units not to carry the item on patrol and that military commanders had failed to implement the order that they should always be carried. The Court of Appeal found this argument sufficient to avoid both the ‘high-level’ political concerns, as it had not been an error in procurement, and the ‘lower-level’ operational failures (para 25) as it was more than a single individual error. Lord Justice Lewison noted:
A case falls within Lord Hope’s middle ground where there has been an arguable failure of a systematic nature, i.e. a failure to provide an effective system of rules, guidance and control within which individuals are to operate in a particular context.
The emphasis is then on a systematic error which is entirely, or largely, within the state’s control. This brings attention back to the shortages in PPE. While the lack of equipment, and alleged government failings in procurement, may not be sufficient to form part of an Article 2 application, the possibility that there have been systematic failures relating to the delivery of equipment into hospitals presumably would. With the military taking command of the supply chain, this is an area entirely within a system of guidance and control of the state. Since it is arguably the state’s errors in that system that has led to individuals being put in a situation where there is a direct and foreseeable risk to their life, there is therefore arguably a breach of Article 2.
A finding of a violation of the right to life is, of course, not a certainty. Both the European Court of Human Rights (Osman v United Kingdom, ), and Lord Hope [para 73] in his articulation of the ‘middle-ground’ test, have stressed that the obligation is not to set disproportionate burdens and that the state will have a wide margin of appreciation towards its implementation. Moreover, given that the PPE shortage is a global phenomenon, and one that was being reported from early February, the state may be able to argue that it had taken all reasonable steps. That does not mean that all would be lost for any future litigant as even if a finding of a violation of the positive obligation is not made at trial, the fact that the breach is certainly arguable is sufficient to engage the investigative duty under Article 2.
The Investigative Component to Article 2
At the daily Press Conference on Good Friday, Ruth May the Chief Nursing Officer in England indicated that there may be lessons to be learned from the deaths of health and care workers, but refused to answer whether any investigations were being conducted.The next day, the Health Secretary indicated that some form of investigation would take place, but failed to give further information. While the fact an investigation will take place is to be welcomed, more details need to be provided swiftly. From Bloody Sunday to Hillsborough, the closure of IHAT and Operation Northmoor (Afghanistan), to the current controversies surrounding the Grenfell Inquiry, the state has an abysmal record on the swift investigation of controversial incidents. There are often political reasons for this. Over 13 years after the invasion of Iraq the Chilcot Inquiry would find that the government’s consideration of Iraqi casualties had been ‘driven by its concern to rebut accusations that Coalition Forces were responsible for the deaths of large numbers of civilians, and to sustain domestic support for operations’. It may very well be that similar political calculations will be in play behind closed doors in Whitehall which could seek to avoid any immediate investigations into deaths. After all, testimonies delivered within investigations into the PPE shortages could uncover concerning accounts of inadequate supply, makeshift protections and what may appear to be a disregard for those who are giving so much to protect the public.
Given that there are already legal avenues that may be used in the aftermath of this crisis, it would serve the government well to be open, frank and honest about the current shortages in PPE for frontline medical workers and to announce that all deaths will receive as effective, independent and transparent investigation as possible. Robust investigations into the deaths of health and care workers would give families the answers to any lingering questions about the loss of their loved ones, and an assurance that lessons were being learned for the future.
Conall Mallory, Lecturer, Newcastle Law School
(Suggested citation: C. Mallory, ‘The Right to Life and Personal Protective Equipment’, U.K. Const. L. Blog (21st April 2020) (available at https://ukconstitutionallaw.org/))