On 10 June 2020, the Court of Appeal handed their judgment down in the case of R (Maguire) v HM Senior Coroner for Blackpool and Fylde [2020] EWCA Civ 738 which held that Article 2 of the European Convention of Human Rights (“ECHR”), was not engaged at the inquest into the death of a vulnerable adult who was living in a care home and subject to a standard authorisation pursuant to the Deprivation of Liberty Safeguards (DoLS).
Background
The facts in this case relate to a vulnerable adult named Jacqueline Maguire (known as Jackie), who had Down’s Syndrome and moderate learning difficulties and was residing in a residential care home. Jackie lacked capacity to make decisions affecting her living arrangements, healthcare and welfare and was subject to a DoLS.
In the days prior to her death, Jackie had become very unwell. On 21 February 2017, a call to NHS 111 resulted in advice to consult a general practitioner. The consultation took place over the telephone but continuing concerns later in the evening led to an ambulance being called. The paramedics wished to transfer Jackie to hospital but she was uncooperative and they concluded that moving her might cause injury. An out of hours GP was telephoned who advised that attempts should be made to persuade Jackie to go to hospital but that if she refused, she should stay in the care home and be monitored overnight.
On 22 February 2017, Jackie’s condition worsened and an ambulance attended the care home. Jackie was taken to hospital and sadly died later that day.
The Inquest
Under Article 2 of the European Convention of Human Rights (“ECHR”), the state has a duty to refrain from taking life unlawfully and has a positive obligation to take appropriate steps to safeguard the lives of those in its jurisdiction. Article 2 may also imply a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from criminal acts. This obligation has become known as the operational duty.
Before the coroner, Jackie’s family argued that the circumstances of her death meant that there should be an inquest which satisfied the procedural obligation to investigate deaths under Article 2 of the European Convention of Human Rights (“ECHR”).
The first Pre-Inquest Review Hearing (PIRH) in relation to Jackie’s death took place on 8 September 2017. At that hearing the Coroner ruled that he did not believe that Article 2 ECHR was engaged. A further PIRH took place on 21 December 2017 and the Coroner stated: “… it is the view of the court that there is an arguable breach and Article 2 ECHR is engaged…”
The jury inquest started on 20 June 2018. On 15 June 2018, judgment had been handed down in R (Parkinson) v. HM Senior Coroner for Inner London South [2018] 4 WLR 106. At the conclusion of evidence, in light of the decision in R (Parkinson) v. HM Senior Coroner for Inner London South [2018] 4 WLR 106, the coroner decided that the allegations against the carers and healthcare practitioners involved in Jackie’s care amounted to allegations of individual negligence and as a result this meant that Article 2 was not engaged.
Application for Judicial Review
Jackie’s family applied for Judicial Review of the Coroner’s decision, alleging that the Coroner was wrong to conclude that Article 2 did not apply on the basis that the state had an obligation to those who may be described as vulnerable persons under the care of the state. It was also argued that there was sufficient evidence of systemic problems leading to the failure to admit Jackie to hospital and as a result Article 2 ought to have applied.
The Divisional Court dismissed the claim and held that, “Where the state has assumed some degree of responsibility for the welfare of an individual who is subject to DOLS but not imprisoned or placed in detention, the line between state responsibility (for which it should be called to account) and individual actions will sometimes be a fine one. However, it was the function of the Coroner to draw it. This court will not interfere save on grounds of irrationality or other error of law. The Coroner’s approach reveals no such error. On the evidence before the Coroner, it was open to him to conclude that this was a medical case and that a jury could not safely find that Jackie died as a result of any actions or omissions for which the state would be responsible. The Coroner considered the relevant issues and reached a conclusion that was open to him.”
Jackie’s family appealed to the Court of Appeal. The grounds of appeal were as follows:
- The Divisional Court erred in concluding that the procedural obligation under Article 2 ECHR did not apply. The circumstances of Jackie’s care dictated that the procedural obligation applied. It was not a medical case as in the case of Parkinson.
- If Parkinson applied, the Divisional Court was wrong to conclude that the failure to have in place a system for admitting Jackie to hospital on 21 February 2017 – whether an advance plan drawn up by the care home and GP, or a plan on the part of the ambulance service faced with a patient without capacity in need of, but objecting to, hospital admission – did not amount to a systemic failure.
- The Divisional Court erred in failing to take account of the wider context of premature deaths of people with learning disabilities (such information being known to the Senior Coroner at the time even if not in evidence before him) but in any event being relevant to the application of Article 2 in these circumstances.
The Court of Appeal decision
The Court of Appeal dismissed this appeal and held that the coroner was right to conclude that, on the evidence adduced at the inquest, there was no basis for believing that Jackie’s death was the result of a breach of the operational duty of the state to protect life under Article 2. The purpose of the inquest was to consider “how Jackie came by her death” rather than “how and in what circumstances”.
The Court distinguished the circumstances of Jackie’s death from that of a psychiatric patient in hospital to guard against the risk of suicide. If Jackie needed medical treatment it was sought, in the usual way, from the NHS. Her position would not have been different had she been able to continue to live with her family with social services input and been subject to DoLS authorisation whilst in their care.
The Court held that is was strictly unnecessary to decide whether on 21 February 2017, the evidence suggested that the medical professionals knew or ought to have known that Jackie faced a real and immediate risk of death and did all that they reasonably should have done to prevent the risk from materialising.
It was held that there was nothing in the materials before the Court which suggested that there is a widespread difficulty in taking individuals with learning disabilities (or elderly dementia patients) to hospital when it is in their interests to do so. The criticism of the care home, the paramedics and the out of hours GP is that between them they failed to get Jackie to hospital on 21 February 2017 and that a plan, protocol or guidance should have been in place that would have achieved that end. The Court stated that this is far removed from the sort of systemic regulatory failing which the Strasbourg Court has in mind as underpinning the very exceptional circumstances in which a breach of the operational duty to protect life might be found in a medical case.
Conclusion
The Court of Appeal judgment has provided clarity in relation to the state’s Article 2 ECHR obligations to protect life for care home residents, particularly where a person in a care home is subject to a DoLS authorisation and may have died as a result of failures to their medical care and treatment which may have contributed to their death.
This decision is likely to be a significant one particularly in the context of Covid-19 related deaths that have happened in care homes during the pandemic.
