Article 2 and Care Home Deaths: Maguire v Her Majesty’s Senior Coroner for Blackpool and Flyde and ors [2020] EWCA CIV 738

The Court of Appeal, in their judgment handed down on 10 June 2020, considered the engagement of Article 2 of the European Convention on Human Rights in inquests relating to the deaths of those who lack capacity or who are otherwise vulnerable and reside in state supported accommodation such as care homes and who die in circumstances where there are deficiencies in their medical treatment and care which may have contributed to their death.

The family had consistently maintained that the Article 2 duty of enhanced investigation applied and sought to criticise the decisions of both the Coroner and the Divisional Court for determining the case as a simple medical one and so at the exclusion of the Article 2 duty. The family sought to argue that failings in the Deceased’s medical management, considered within the context of her vulnerability and incapacity, placed her in a category to which the Article 2 operational duty applied and had been breached.

Facts of the case

The Deceased, Jacqueline Maguire, died in hospital of a perforated gastric ulcer with peritonitis and pneumonia at the age of 52 on 22 February 2017. She was a vulnerable adult living with Down’s Syndrome and moderate learning difficulties. She had resided in a care home since 1993, funded and supervised by Blackpool City Council. By the time of her death, she suffered with limited mobility, needing a wheelchair to move around outside. The Deceased lacked capacity and was deprived of her liberty under the Mental Capacity Act 2005. The most recent capacity assessment found that the Deceased was “totally dependent” on staff for her day to day care and was considered to be a vulnerable adult with no insight as to her condition or circumstances. The care home were responsible for maintaining the Deceased’s safety and welfare and ensuring that she had appropriate and timely access to medical services.

Multiple issues were raised and investigated during the inquest regarding the care and medical treatment the Deceased received during the time preceding her death. These included: a request by the Deceased to see a GP after exhibiting diarrhea and vomiting which was not actioned; a failure by the GP to conduct a home visit and to triage and manage the case over the telephone; a failure to convey relevant information about the Deceased’s history and condition to the attending ambulance crew. There was particular criticism of the absence of a care plan to address a situation in which the Deceased declined or refused medical intervention or hospital admission, to which she was prone and as occurred in the instant events. The consensus view of the paramedics and a GP was that the Deceased ought not to be coerced or forced to attend hospital. The GP’s view was that the Deceased’s reported symptoms were not such as to require emergency hospital admission and consequently that she could be safely monitored and managed within the home. Sadly, the Deceased’s condition continued to deteriorate. She collapsed the following day and was admitted to hospital where she sadly later died.

Article 2

There is often an intense and hard-fought debate in inquests about whether the Coroner’s investigation is one governed by Article 2 and therefore whether the Coroner is enabled by section 5(2) of the Coroners and Justice Act 2009 to extend the “how” question to include the broader “circumstances” of a death. In brief terms, Article 2 has been interpreted in such a way as to impose the following obligations on the state.

1. The negative obligation to refrain from taking life.
2. Positive obligations:
   1. to provide an effective regulatory framework for the protection of people’s lives generally (the general, systemic or substantive duty); and
   2. to take reasonable steps to protect the life of a specific individual where state authorities know or ought to know that there is a real and immediate risk to that person’s life, either by suicide or at the hands of another (the operational duty).
3. A procedural obligation to initiate an effective independent public investigation (the duty of enhanced investigation).

Healthcare failures have more recently been treated as a separate class of case and deaths in those cases have been held generally not to engage Article 2. The state’s positive obligations in relation to healthcare and medical treatment are regulatory: the state must put in place an effective framework that compels hospitals to adopt appropriate measures to protect patient’s lives: Lopes de Sousa Fernandes v Portugal (2018) 66 EHRR 28.

In R (Parkinson) v Kent Senior Coroner [2018] EWHC 1501 (Admin), the court maintained that where the state has made provision for securing high professional standards among health professionals and the protection of the lives of patients, errors of professional judgment will not be sufficient to engage Article 2.  Generally, therefore, an “ordinary” case of alleged medical  negligence will not engage Article 2. In Parkinson the Court warned that care should be taken to ensure that allegations of “individual negligence” are not “dressed up as systemic failures”.

The decision of the Coroner and Divisional Court

HM Senior Coroner sat with a jury between 20 and 29 June 2018. Over the course of the inquest, evidence was heard from some 30 witnesses. The Coroner had initially determined that Article 2 was engaged, however he revisited this decision in the light of the Parkinson decision which was handed down towards the conclusion of the inquest. Considering and applying that case, the Coroner found that the allegations against the carers and healthcare practitioners and providers amounted to allegations of individual negligence and that consequently Article 2 was not engaged. This decision was challenged by judicial review.

On 15^th May 2019, the Divisional Court handed down their judgment. The High Court recognised 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 into account) and individual actions will sometimes be a fine one” and did not consider that the Coroner had fallen into error. The court held that 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 (the Deceased) died as a result of any actions or omissions for which the state would be responsible”

Grounds of Appeal

The Deceased’s family appealed to the Court of Appeal on three grounds:

Firstly, that the lower courts erred in concluding that Article 2 was not engaged, in particular in relation to the operational duty. Criticism was made of the focus by both on this being a Parkinson-type “medical case” , when the case was more akin to Rabone v Penine NHS Care Trust [2012] UKSC 2 (the death of a voluntary patient in a psychiatric hospital in which the operational duty had been held to be engaged).

Secondly, if Parkinson applied, the Divisional Court was wrong to conclude that the failures did not amount to a systemic failure. In particular, the absence of a plan or system for admitting a patient who lacked capacity in need of, but objecting to, hospital admission amounted to a systemic failure.

Thirdly, the Divisional Court erred in failing to take account of the wider context of the premature deaths of people with learning difficulties.

Court of Appeal Judgment

In a lengthy and detailed judgment Lord Burnett of Maldon (delivering a judgment to which all members had contributed) analysed many domestic and European authorities regarding medical cases (both relating to patients in need of physical and psychiatric treatment), medical cases in custody and the DOLS framework. The Judgment is a useful starting point for those considering the application of Article 2 beyond the paradigm examples of state custody and psychiatric hospitals.

The Appeal was dismissed. In concluding that the operational duty under Article 2 was not engaged, the Court made the following observations:

• The operational duty is not owed for all purposes to vulnerable people in care homes. The scope of the operational duty must be carefully considered in the context of each case.
• The operational duty is owed to vulnerable people under the care of the state for some purposes. The Court’s focus was on the scope of any duty under Article 2 and why it might be owed. The unifying feature of the application of the operational duty in the particular case was one of state responsibility, rather than individual judgment or action. Article 2 may be engaged in cases where the state was aware of the appalling and life-threatening conditions of facilities in residential care homes for which it was responsible and therefore had unreasonably put the lives of those placed in such conditions in danger (for example in Nencheva v Bulgaria (App No 48606/06), the state was in breach of its positive obligation for failing to take prompt action to protect the lives of young people in a residential care home where 15 of the children died. The authorities were aware of the appalling conditions and of an increased mortality rate). Further, the Court of Appeal considered that Article 2 may also be engaged where “the state was aware of the shortcomings, through regulatory inspections, and did not act on them” [para 96]
• The Court of Appeal considered the case of Dumpe v Latvia (App No 71506/13) which it considered closely analogous to the circumstances of the Deceased’s death. In that case the deceased suffered from Down’s Syndrome and epilepsy and was accommodated in long-term state care. There were multiple failings and shortcomings identified in his medical care and a failure to react to a deterioration in his condition which were held to be akin to negligence. It was not argued and so the court did not find that the state had breached its obligation to ensure an effective regulatory framework to safeguard the deceased’s life.
• The Court distinguished the circumstances of the Deceased’s death from that of a psychiatric patient in hospital to guard against the risk of suicide. The Deceased was not residing in the home for medical treatment. She was accommodated by the home as she was unable to live independently or with her family. If she required medical treatment, this would be sought in the usual way, from the NHS. Her position regarding medical treatment would not have been different had she continued to live with her family with social services input.
• It is strictly unnecessary to decide whether on the evening prior to the Deceased’s death, whether medical professionals knew or ought to have known that she faced a real and immediate risk of death. In determining that question a “relatively light touch approach” would apply [paragraph 102]. Collectively the paramedics and clinicians did not consider the situation to be dangerous.
• The Court of Appeal did not consider that the Learning Disabilities Review provided additional weight to the argument that an operational duty was owed to the Deceased.

Regarding the second ground of appeal, the Deceased’s family sought to argue that even if the case was considered as a Parkinson “medical case”, then it was one which fell within the excepted category of cases acknowledged within the Parkinson judgment.

Preceding Parkinson, the Grand Chamber of the ECtHR in Lopes de Sousa Fernandes v Portugal (2018) 66 EHRR 28 identified four cumulative factors which amounted to exceptional circumstances in which Article 2 may be engaged in medical cases:

(a) The acts or omissions of the health care providers “must go beyond mere error or medical negligence, in so far as the health care professionals, in breach of their professional obligations, deny a patient emergency medical treatment despite being fully aware that the person’s life is at risk if that treatment is not given” (para. 194);

(b) The dysfunction “must be objectively and genuinely identifiable as systemic or structural in order to be attributable to the state authorities, and must not merely comprise individual instances where something may have been dysfunctional in the sense of going wrong or functioning badly” (para. 195);

(c) There must be “a link between the dysfunction complained of and the harm which the patient sustained (para. 196);

(d) “The dysfunction in issue must have resulted from the failure of the state to meet its obligations to provide a regulatory framework …” (para. 196).

The Court of Appeal were unable to accept that the criticisms of the paramedics or out of hours GP came close to satisfying the first limb (a). The collective evidence of the medical professionals was that the Deceased was not in danger the night before her death and that she could be safely cared for at the home. Further, the Court did not accept that the case demonstrated systemic dysfunction. The evidence before the Court did not suggest that there was a widespread difficulty in taking individuals with learning disabilities to hospital when it is in their interests to do so: “the making of plans in individual cases and the detail of guidance given to paramedics is far removed from what the court [in Lopes de Souza] describes” [paragraph 106].

Conclusion

Notwithstanding the Divisional Court’s conclusion that “the line between state responsibility (for which it should be called into account) and individual actions will sometimes be a fine one”, the Court of Appeal judgment demonstrates the high threshold to be met regarding the engagement of the operational duty under Article 2 in cases concerning the care of vulnerable persons in care homes who receive inadequate medical treatment.

In a healthcare context, the state’s positive obligations are to effect a regulatory framework compelling hospitals to put in place appropriate measures for the protection of patient’s lives and secondly to take preventative measures to protect an individual from a real and immediate risk to life which is known or ought to be known. The state may be taken to be aware of such shortcomings by regulatory inspections, such as those completed by the Care Quality Commission. One consequence of this judgment could be an increased focus upon a service provider’s regulatory history and any steps taken by a provider to remedy a previously identified failing or systemic dysfunction.

The case also raises questions as to the potential engagement Article 2 following deaths from Covid-19 contracted in state-run care homes or in circumstances where individuals have been discharged from hospital to care homes with suspected or confirmed Covid-19 cases. The awareness or knowledge which the state has of the increased mortality rate and the conditions in the home (including access to PPE) will clearly be a significant factor.

The Judgment is essential reading for any inquest practitioner, addressing neatly and in detail the complexities concerning the engagement of Article 2 in the care and treatment of those who lack capacity.

Kate Wilson is an experienced member of the Inquest Team and is regularly instructed on behalf of interested persons at inquests where there is a dispute regarding the engagement of Article 2.