The recent Court of Appeal decision in Maguire [2020] EWCA Civ 738 addressed whether the state's procedural obligations under Article 2 of the ECHR were triggered where a care home resident, whose liberty was restricted under a Deprivation of Liberty Safeguards authorisation, died.

Background

Jackie Maguire (Jackie) was a long-term resident of a care home. She had Down's syndrome, learning difficulties and behavioural difficulties. She was subject to a Deprivation of Liberty Safeguards (DoLS) authorisation.

In the middle of February 2017, Jackie became ill. She initially asked to see a doctor but the care home staff took no action. On 21 February, she had a fi t. The out-of-hours GP was contacted and it was concluded that she had viral gastroenteritis and a UTI and issued a prescription. Jackie collapsed later that day. An ambulance was called but she refused to go to hospital. Following discussions with the GP, and as she did not look seriously unwell, it was agreed that she would remain at the home. She collapsed the next day. She was taken to hospital where she later died from a perforated gastric ulcer, peritonitis and pneumonia.

Inquest and subsequent proceedings

At a pre-inquest review hearing, the coroner concluded that Article 2 was engaged. However, at the end of the inquest, having heard all of the evidence, he decided that Article 2 was not engaged because the allegations regarding the care that was provided amounted to allegations of medical negligence and did not trigger the state's procedural obligations under Article 2 (following R -v- Parkinson -v- Kent Senior Coroner [2018] 4 WLR 106 (Parkinson)).

Jackie's mother brought proceedings for judicial review but the divisional court dismissed the claim.

Jackie's mother appealed to the Court of Appeal.

The grounds of appeal

The grounds of appeal were:

  1. By parity of reasoning with the case of Rabone -v- Pennine Care NHS Trust [2012] UKSC 2; [2012] 2 AC 72, the circumstances of Jackie's care meant that the procedural obligation applied. It was not a medical case of the sort considered in Parkinson.
  2. If Parkinson did apply, the divisional court was wrong to conclude that the failure to have in place a system for admitting Jackie to hospital on 21 February did not amount to a systemic failure.
  3. The divisional court erred in failing to take account of the wider context of premature death in persons with learning disabilities.

Outcome of appeal

All three grounds of appeal were dismissed.

The Court of Appeal held:

  1. (Restating the approach of the ECtHR in Lopes de Sousa Fernandez -v- Portugal (2018) 66 EHRR 28): In cases involving alleged medical negligence, the state's positive obligations are regulatory, 'including necessary measures to ensure implementation, including supervision and enforcement'. It would only be in 'very exceptional circumstances' that a state might be responsible under the substantive limb of Article 2.
  2. There was no case law to support the proposition that those in a position analogous to Jackie (vulnerable and subject to a DoLS authorisation) were owed an operational duty under Article 2 for all purposes: the operational duty is owed to such people for some purposes.
  3. Jackie's circumstances were not analogous to a psychiatric patient in hospital for medical treatment (Rabone). She was looked after by carers because she could not look after herself. If she required medical treatment, it was sought, in the usual way, from the NHS.
  4. Jackie's life was not knowingly put in danger by a denial of life-saving emergency treatment. Neither the GP nor the paramedics thought that she was in danger on the evening of 21 February. This was not a case that raised systemic or structural dysfunction in medical services. There was no evidence that there was a widespread difficulty in taking individuals with learning disabilities to hospital when it is in their interests to do so.

The coroner was therefore right to conclude that, based on the evidence at the inquest, there were no grounds for believing that Jackie's death was the result of the operational duty of the state to protect life.

Headlines

  1. The state's Article 2 obligations are not automatically triggered in circumstances where a vulnerable person, who is subject to a DoLS standard authorisation, dies in a care home following possible failures by medical professionals.
  2. An operational duty is owed for some, but not all, purposes and the fact that a person is vulnerable and their liberty is restricted does not alter the principles to be applied.
  3. It will only be in exceptional circumstances that the operational duties of Article 2 will be triggered and, in the majority of cases, the procedural obligation to hold an Article 2 inquest will not bite.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.