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Legal case

Article 2 ECHR: Court of Appeal reaffirm the law applicable at inquest

R (on the application of Muriel Maguire) (Appellant) v HM Senior Coroner for Blackpool & Fylde (Respondent), United Response, North West Ambulance…

R (on the application of Muriel Maguire) (Appellant) v HM Senior Coroner for Blackpool & Fylde (Respondent), United Response, North West Ambulance Service, Blackpool Victoria Teaching Hospital, Dr Safaraz Adam, Dr Susan Fairhead, Blackpool City Council, Care Quality Commission (Interested Parties) [2020] EWCA Civ 738.

Introduction

On 10 June 2020 the Court of Appeal dismissed an appeal on three separate grounds, brought following judicial review proceedings in the divisional courts [2019, EWHC 1232 (Admin)] that had sought to challenge a coroner’s application of the law regarding the engagement of Article 2 ECHR at an inquest concerning the death of a vulnerable adult deprived of her liberty.

Background

The original inquest proceedings, commencing on 20 June 2018, concerned the death of Jacqueline Maguire (Jackie) who resided at a care home (non-nursing) in Lytham St Annes and had done so for many years. Jackie was subject to a DoLS, on a one year standard authorisation. On 21 February 2017, Jackie had become increasingly unwell and following calls to her GP and NHS 111 service for advice an ambulance was sent to her care home to conduct a review. Following this review, the crew intimated that they wished Jackie to attend hospital but following a direct refusal to go with them the crew formed the view (with which staff at the care home concurred) that it would have been disproportionate to use physical force in accordance with the Mental Capacity Act 2005. An out of hours GP was contacted, who concurred that it would be inappropriate to use physical force and recommended that Jackie be watched overnight and taken to see her GP in the morning. On the morning of 22 February, Jackie’s condition had deteriorated further and a second ambulance was called for her. On their arrival they were able to transport Jackie to the nearest hospital where she died later that day from a perforated gastric ulcer with peritonitis and pneumonia. 

At inquest, the coroner ruled that Article 2 of the ECHR was not engaged as per R (Parkinson) v Kent Senior Coroner [2018] EWHC 1501 (Admin), [2018] 4 WLR 106 and directed the jury accordingly. It was thereafter concluded by the jury that Jackie died of natural causes. Judicial review proceedings were subsequently lodged by Jackie’s mother, Muriel, and on 15 May 2019 the High Court handed down judgment, concluding that the coroner’s application of the law with respect to Article 2 was “sound”.

The appeal

Muriel Maguire appealed to the Court of Appeal on three grounds:

  • The divisional court erred in concluding that the procedural obligation under Article 2 ECHR did not apply. Jackie’s case was not a medical negligence case as considered by Parkinson;
  • If Parkinson applied, the court was wrong to conclude that the failure to have in place a system for admitting Jackie to hospital upon her refusal on 21 February 2017 did not amount to a systemic failure engaging the procedural obligation under Article 2 ECHR;
  • The court erred in failing to take into account 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), which was relevant to the application of Article 2 in Jackie’s case.

Dealing with their conclusions on grounds 1 and 3 of the appeal, the Court of Appeal recognised, drawing reference to the cases of Nencheva v. Bulgaria (App. No 48606/06) and Câmpeanu v. Romania [GC] (App. No. 47848/08), that there would, of course, be circumstances where the operational duty under Article 2 would be owed to vulnerable people under the care of the state. However, the approach illuminated by both those cases (concerning deaths in prison) does not support a conclusion that for all purposes an operational duty is owed to those in a vulnerable position in care homes.

Whilst acknowledged by the Court of Appeal that the decision in Dumpe v. Latvia (App. No. 71506/13) may not represent "clear and constant jurisprudence of the Strasbourg Court" they acknowledged that there is no decision of that court, that had been drawn to their attention, which suggests that the operational duty is owed to those in a similar position to Jackie in connection with seeking ordinary medical treatment.

The Court of Appeal concluded that: “Jackie's circumstances were not analogous with a psychiatric patient who is in hospital to guard against the risk of suicide, she was accommodated by United Response to provide a home in which she could be looked after by carers, because she was unable to look after herself and it was not possible for her to live with her family; she was not there for medical treatment, if she 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 an authorisation from the Court of Protection in respect of her deprivation of liberty whilst in their care.”

Continuing, the Court of Appeal determined that it was therefore “strictly unnecessary” to decide whether on the evening of 21 February 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” (Osman v United Kingdom [2000] 29 EHRR 245). In determining that question the Court of Appeal held that 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 v. Portugal [2019] 69 EHRR 8, would apply”.

With respect to ground 2 of the appeal, the Court of Appeal asked whether there was reason to believe that the "very exceptional circumstances" which can give rise to a breach of the operational duty under Article 2 in a medical case defined in Lopes de Sousa Fernandez v. Portugal [2018] 66 EHRR 28 might be in play. The court held that they were not, commenting that: “We were unable to accept that the criticisms of the paramedics or out of hours GP come close to satisfying the first exception identified by the Strasbourg Court, namely that the patient's life was knowingly put in danger by a denial of access to life-saving emergency treatment. On the contrary, as we have noted, the collective judgement of the professionals was that Jackie was not in danger on the evening of 21 February 2017 and could be kept under observation at the home, even though it was preferable that she went to hospital”.

Furthermore, the court judged that: “This was not a case which raises systemic or structural dysfunction in [medical] services which resulted in Jackie being denied life-saving treatment. The criticisms of the care home, the paramedics and the out of hours GP is that between them they failed to get Jackie to hospital on the evening of 21 February; and that a plan, protocol or guidance should have been in place that would have achieved that end”. In response, the Court of Appeal comment that this “is remote 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”.

Accordingly, the appeal was dismissed on all 3 grounds.

Conclusions and implications

The Court of Appeal judgment is clear confirmation that a patient under a degree of state control by virtue of a DoLS, or any other similar mechanism of state control, does not fall within the court’s paradigm example of state detention and is therefore subject to a much higher threshold when considering the engagement of Article 2 in the event of an inquest.

The judgment also reinforces that it is incumbent on coroners to employ a very high standard when considering the engagement of Article 2 in medical cases. This judgment will therefore be persuasive and helpful to lawyers representing emanations of the state, particularly NHS organisations, when lodging submissions on the engagement of Article 2 at inquest. 

If the content of this article raises any concerns for you, please speak to your usual contact in the Weightmans Healthcare or Local Government teams, or contact the author Jessica Swift on jessica.swift@weightmans.com.

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