State has obligations under the EU's laws
Published 21/11/2012 | 17:00
THE decision by the Government to ask the HSE to stand down Galway University Hospital doctors from the inquiry into the death of Savita Halappanavar highlights the continued failure of the State to respond properly to what happened in this case.
Recent reports suggest that the Government asked that the Galway doctors step aside from the inquiry panel in response to complaints from Savita's husband, Praveen, that the inquiry would not be independent and therefore would not receive his co-operation.
As a bereaved husband, Praveen's position has irresistible moral force behind it. But it also has the force of the European Convention on Human Rights.
Praveen Halappanavar may not have been aware of this when he gave his response to the makeup of the HSE inquiry – but the Government certainly should have been very well aware of it.
The European Court of Human Rights has repeatedly stated that Article 2 of the Convention, which guarantees the right to life, imposes an obligation on EU states to carry out a certain type of investigation into certain types of deaths.
Over time, this has been clarified so as to make clear the circumstances that will trigger the necessity for such an investigation.
In simple terms, these are when a person has come by their death in the custody, care or control of the State.
Applying this standard, it is immediately apparent that the circumstances of the death of Savita Halappanavar in Galway activate the ECHR requirement.
Thus, the question arises: what must the State in this case do to meet its obligations to Savita and her family?
The court has stated repeatedly that the procedural obligation which flows from the right to life requires a high standard of investigation, if it is to be vindicated properly.
Any old analysis will not do.
Once again, simply put, the investigation must conform to five basic requirements: it must be reasonably prompt, effective, independent, public, and involving of the family or next of kin to the maximum extent necessary.
These are not complicated standards. They are easy to understand and easy to apply mechanically to the facts of any death.
How many of them have the Government complied with?
Michael Finucane is a solicitor and current chairman of the Human Rights Committee of the Law Society