Court of Appeal reinforces high threshold for engagement of Article 2 in medical cases
R (Maguire) v Her Majesty’s Senior Coroner for Blackpool and Flyde [10.06.20]
It is well established that Article 2 of the Human Rights Act 1998 is engaged at inquest if the deceased was under the control of the state, for example whilst imprisoned or detained under the Mental Health Act 2005.
A grey area in the context of medical cases, and in particular vulnerable adults under the care of the state has been explored further on appeal in R (Maguire) v Her Majesty’s Senior Coroner for Blackpool and Flyde. The appeal, heard earlier this year, was handed down on 10 June 2020. The outcome confirms that the threshold for Article 2 engagement remains very high in the context of medical cases.
The Maguire judgment sets out a clear analysis of previous decisions of the European Court. Specifically, the Court of Appeal has confirmed the leading decision Lopes de Sousa Fernandez v Portugal (2018) (applied in the UK courts in R v Parkinson v Senior Coroner for Kent et al ). This sets out that Article 2 will only be breached in very exceptional circumstances whereby all of the following apply:
- Acts or omissions “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”.
- The dysfunction “must be objectively/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”.
- There must be “a link between the dysfunction complained of and the harm which the patient sustained”.
- “The dysfunction in issue must have resulted from a failure of the state to meet its obligation to provide a regulatory framework”.
The issues put before the Court of Appeal in Maguire arose from the very sad death of Jackie Maguire who had Down’s Syndrome and associated severely compromised cognitive and communication abilities.
Jackie had lived for more than twenty years in a home for young adults with learning difficulties; the placement was funded and supervised by Blackpool City Council, however, the home was not a care home and staff had no medical or nursing training. Jackie was under a deprivation of liberty safeguards (DoLS) Schedule 1 (A) Mental Health Act 1983 (as amended) order. She died following an illness and a series of subsequent failings in respect of her care.
At a pre-inquest hearing, the coroner determined to hear the matter as an Article 2 ‘compliant’ inquest. However, at the conclusion of the evidence, bolstered by the decision in Parkinson, the Coroner ruled that the failures were ‘mere negligence’ that did not trigger Article 2.
The family applied for judicial review on the basis the judge had erred in law. The family argued that the court should recognise the state’s positive obligations under Article 2 to ‘particularly vulnerable persons under the care of the state’. Alternatively, there was sufficient evidence of systemic problems that the issue of Article 2 ought to have been decided by the jury.
When considering the relevant case law the Divisional Court identified two principles which govern whether or not Article 2 is engaged in an inquest:
- In the absence of systemic or regulatory dysfunction, Article 2 may be engaged by an individual's death if the state had assumed responsibility for the individual's welfare or safety.
- In deciding whether the state has assumed responsibility for an individual's safety, the court will consider how close the state's control was over that individual.
The Divisional Court held that the coroner was correct in law in concluding that Article 2 was not engaged on the facts and concluded that the events leading up to death were caused by individual failings not systemic ones. The deceased was deprived of her liberty under the Mental Capacity Act and this on its own is insufficient to trigger Article 2 engagement.
Court of Appeal decision
The decision in Maguire confirms the position taken by the lower courts and reinforces the high threshold established by Fernandez and Parkinson in medical cases.
In particular the Court of Appeal found 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” and it followed that the procedural obligations on the state did not arise. The coroner’s conclusions were therefore governed by section 5(1) of the 2013 Act and in particular by “how JM came by her death” rather than an enhanced inquest asking the questions “how and in what circumstances”.
It was a particularly relevant consideration on appeal that the factual circumstances meant that the position would not have been different had Jackie been able to continue to live with her family with social services input and been subject to an authorisation from the Court of Protection in respect of her deprivation of liberty whilst in their care.
In practical terms the outcome of the appeal is important. For the coroner Article 2 engagement means looking more widely at the circumstances in which the person died, as well as by what means. The coroner also has wider scope to refer to ‘inadequacies’ or ‘failures’ and to comment on issues that may have made a ‘difference’ in the lead up to death when making their conclusions.
This results in a lengthier and more complex process with additional disclosure, enhanced scrutiny of policies, systems and procedure and a broadening of the net in respect of witnesses and the scope of the evidence. It may also increase the chances of regulation 28 recommendations.
Understandably, families will wish to seek an enhanced investigation into the death of a loved one where they can, but the decision in Maguire reinforces that in all but the most exceptional circumstances, an enhanced Article 2 investigation is not required.
However it seems likely that more cases will test the boundaries for an enhanced investigation, in particular where the death concerns a vulnerable adult in a care home. It is noteworthy that the Divisional Court stated:-
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 is the function of the Coroner to draw it. This court will not interfere save on grounds of irrationality or other error of law.
This arguably leaves the door ajar for similar cases to be decided differently by individual coroners on the facts but the decision in Maguire sets the bar high and the courts have not been willing to extend the scope of state obligation that might trigger Article 2 to date.