Court of Appeal clarifies Article 2 obligations to protect life for care home residents

Maguire v Her Majesty’s Senior Coroner for Blackpool and Flyde and ors [2020] EWCA CIV 738

In a judgment handed down on 10 June 2020, the Court of Appeal held that Article 2 was not engaged at the inquest into the death of a vulnerable woman subject to Deprivation of Liberty Safeguards (DoLS) and residing in a care home.

This judgment clarifies the Article 2 obligations of the State to protect life where a person is in a care home or is the subject of a DoLS and will be of particular importance for coroners in light of the substantial number of deaths of those in care homes as a result of the COVID-19 pandemic.

Background

This case concerned an inquest into the death of Ms Jacqueline Maguire, a 52 year old woman, who was a vulnerable adult with Down's Syndrome and moderate learning difficulties. Ms Maguire sadly died in hospital on 22 February 2017. The cause of her death was (i) perforated gastric ulcer and peritonitis and (ii) pneumonia. 

Ms Maguire had resided in a care home since 1993 and was subject to a DoLS order. Her placement at the home was supervised and funded by Blackpool City Council and the home provided accommodation for adults with learning disabilities who required personal care. It was not a nursing home and its staff had neither medical nor nursing training.

In the days prior to her death, Ms Maguire complained of sore throat and had limited appetite. Two days before her death, she had suffered from a temperature, vomiting and diarrhoea and had asked to see a GP. Staff at the care home did not act on this request. On 21 February a call was made to NHS 111 where a consultation with a GP took place over the telephone. However continuing concerns later that evening led to an ambulance being called. The paramedics wished to transfer Ms Maguire to hospital however she would not cooperate. An out of hours GP advised over the telephone that attempts should be made to persuade her to go to hospital but if she refused then she should be monitored overnight. Ms Maguire's condition worsened overnight and the following morning an ambulance attended and she was taken to hospital. Ms Maguire was found to be severely dehydrated with kidney failure, metabolic acidosis and a severe infection. She died following a cardiac arrest later that day.

At the commencement of the inquest, the family argued that the circumstances of death dictated that there should be an inquest which satisfied the procedural obligation under Article 2. The Coroner initially agreed and evidence was heard at the inquest. However before the jury was asked to return its conclusion, the Coroner revisited his earlier decision regarding Article 2 in light of the recent decision in R (Parkinson) v. HM Senior Coroner for Inner London South [2018], limiting the jury's conclusion to deciding how, when and where Ms Maguire came by her death, as opposed to also delivering a conclusion regarding " in what circumstances" the deceased came by her death.

A claim for judicial review was made, contending 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. Furthermore, it was argued that there was sufficient evidence of systemic problems leading to the failure to admit Ms Maguire to hospital and therefore Article 2 ought to have applied. The Divisional Courts dismissed the claim.  

Grounds of Appeal

Mrs Maguire's family advanced the following three grounds of appeal:

1. The Divisional Court erred in concluding that the procedural obligation under article 2 ECHR did not apply. It was argued that Ms Maguire's case was similar to the circumstances in the case of Rabone v Penine NHS Care Trust [2012] and that this was not a "medical case" as in the case of Parkinson.
2. If Parkinson applied, the Divisional Court was wrong to conclude that the failure to have in place a system for admitting Ms Maguire to hospital on the evening of 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.
3. 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.

Decision

The Court of Appeal dismissed this appeal concluding that the operational duty under Article 2 was not engaged.

The judgment contains lengthy analysis of a number of domestic and European authorities regarding the engagement of Article 2 however we consider the key points are as follows:

• An operational duty under Article 2 will not always be owed to those in a vulnerable position in care homes and it is necessary to consider the scope of any such duty in each case (paragraph 97 of the judgment).
• Article 2 may be engaged in cases involving vulnerable people where, for example, the state was aware of neglect or life-threatening conditions at the home for which it was responsible for, or where the state was aware of shortcomings at the home and did not act on these.
• The circumstances in Ms Maguire's case were distinguished from the circumstances in Rabone. Ms Maguire was not residing at the care home to receive medical treatment. Her position would not have been different if she had been able to continue to live with her family (paragraph 101 of the judgement).
• The Court found it was "strictly unnecessary" to decide whether the evidence suggested that the medical professionals knew or ought to have known that Ms Maguire faced a real and immediate risk to life and did all that they reasonable should have done to prevent the risk from materialising. The Court stated that "in determining that question the relatively light touch approach (compared with those detained by the state in prison or involuntary psychiatric patients) articulated by the Strasbourg Court in Fernandez de Oliveira would apply." The Court found that collectively the professionals did not think the situation was dangerous and doubted whether the GPs and paramedics ought to have been aware that Ms Maguire was at high risk of mortality as found retrospectively by the Coroner's expert. (paragraph 102).
• There were no "very exceptional circumstances" with regards to the medical care to give rise to a breach of the operational duty under Article 2 as defined in Lopes de Sousa Fernandez v. Portugal (2018) 66 EHRR 28. The Court did not accept that this was a case which raised "systemtic or structural diysfuction in [medical] services" which led to Ms Maguire being denied lifesaving emergency treatment (paragraph 105).
• In relation to Ground 3, the Court found that the evidence provided in this respect did not provide additional weight to the argument that relevant operational duty was owed to Jackie.

Comment

As stated above, it is likely this judgment may be deployed by Coroners when dealing with deaths occurring in care homes due to COVID-19 when considering whether Article 2 applies. It will be interesting to see how these arguments develop, particularly in light of the very public concerns regarding the lack of PPE across the country, together with other concerns relating to when the entire nation, including the vulnerable individuals, ought to have gone into lockdown, and the lack of testing