Does the death of a vulnerable care home resident require an Article 2 inquest?

On 10 June 2020, the Court of Appeal handed down its decision in R (Maguire) v HM Senior Coroner for Blackpool & Fylde.

It provides useful guidance when considering submissions about whether Article 2 of the ECHR is engaged and the scope of the substantive positive duties to protect life under Article 2 ECHR. The decision confirms the approach where the operational duty under Article 2 might apply in medical cases and is particularly relevant in the current pandemic where questions about decisions about medical care and treatment may arise.

Facts of the case

Jacqueline Maguire (JM) was ‘a vulnerable adult with no insight’, Down’s syndrome and moderate learning difficulties. She lacked capacity to make decisions affecting her living arrangements, healthcare and welfare and was subject to a Deprivation of Liberty Safeguards (DoLS) authorisation under the Mental Capacity Act 2005. She had lived in the community in a residential care home for approximately 20 years, paid for and supervised by Blackpool Council. She had become increasingly immobile and was “totally dependent” on her carers.

In the days leading up to her death, she became ill with a sore throat and loss of appetite. This developed into symptoms of vomiting and diarrhoea and raised temperature. Her carers consulted the NHS 111 out of hours medical advice service and her GP and out of hours GP service. No visits were made to the home and a prescription of anti-sickness and antibiotic medication was given. Ultimately the care home called an ambulance. When the paramedics arrived, JM refused to go to hospital. She could not be persuaded and was not compelled to go. The paramedics were unaware that JM had a history of learning difficulties and Down’s syndrome. She remained at the home overnight and continued to deteriorate. She was eventually admitted to hospital the following day where she sadly died of a perforated gastric ulcer with peritonitis and pneumonia on 22 February 2017.

Inquest

In the inquest which followed, the Coroner determined at the conclusion of the evidence that Article 2 ECHR was not engaged (having conducted the inquest up to that point on the basis that it was) and he did not leave a finding of neglect to the jury. The jury returned a conclusion of natural causes with a short narrative on 29 June 2018. The family of JM brought judicial review proceedings in respect of the Coroner’s decisions, culminating in an appeal to the Court of Appeal on the Article 2 determination which was dismissed. The appeal was live-streamed over a YouTube channel and considered several important domestic and European authorities. 

The right to life

Article 2(1) of the European Convention of Human Rights provides that “everyone’s right to life shall be protected by law”.

Member states, therefore, have the following substantive duties:

1. a negative duty to refrain from taking life
2. a positive duty to take appropriate measures to safeguard life. This includes provision of an effective regulatory framework for protection of life generally i.e. suitable systems of work (the general duty) and taking 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 life either by suicide or violence by another (the operational duty)

Article 2 also contains a procedural obligation to carry out an effective investigation into breaches of its substantive limb.

Engagement of Article 2 in medical cases

A few days before the original inquest started, the judgment in R (Parkinson) v Kent Senior Coroner [2018] EWHC 1501 (Admin), [2018] 4 WLR 106 was handed down. The judgment gave guidance on the circumstances in which Article 2 of the European Convention on Human Rights may apply where a person dies while in a hospital. At the conclusion of the evidence in the original Maguire inquest, the Coroner reconsidered the position in light of Parkinson. He ruled that the allegations against JM’s carers and healthcare providers amounted to allegations of individual negligence, which Parkinson had clarified as falling outside the state’s obligations under Article 2. The approach of the Coroner was upheld both in the Divisional Court and Court of Appeal. Further, the circumstances of JM were not considered to fall into the exceptional category of cases referred to in Parkinson which can give rise to the operational duty in a medical case as set out in Lopes de Sousa Fernandez v Portugal (2018) 66 EHRR 28.

Vulnerable people in care homes

Whilst there are circumstances where the operational duty is owed to vulnerable people under state care and ‘for some purposes’ the Court of Appeal considered Dumpe v Latvia (App No 71506/13) to be closely analogous to the circumstances of JM’s case. In Dumpe, the ECtHR had concluded that the operational duty does not always apply to the provision of medical care to someone in a care home.

Medical treatment in a care home

A distinction was drawn between a psychiatric patient in hospital to guard against the risk of suicide and residence in accommodation where an individual is unable to look after herself and it is not possible to live with family. In the latter case, the individual is not in the accommodation for the purpose of medical treatment and if that is required it is sought as if she were living with her family with social services’ input.

The Learning Disabilities Mortality Review and a Confidential Inquiry into premature deaths of people with learning disabilities (CIPOLD)

JM’s family submitted information about premature deaths of individuals with learning difficulties. The Court of Appeal found that the reports did not provide additional weight to the argument that a relevant operational duty was owed to JM and commented ‘There is nothing in the materials before us which suggest that there is a widespread difficulty in taking individuals with learning difficulties (or elderly dementia patients) to hospital when it is in their interests to do so.’

Comment

With increased scrutiny on deaths in care homes due to Covid-19, it is likely that the judgement in Maguire will be frequently referred to in the coming months. The family in Maguire had criticised care home staff (and GP and paramedics) for lack of procedures or advance plan to deal with JM’s refusal to go to hospital. The record keeping and audit trail of decision making at the home will be relevant to consideration of the issues and providers and their lawyers should be aware of the impact of the case.

The issue of a Prevention of Future Death report is not restricted by the decision in Maguire and a wide investigation can still be undertaken.

Claims for damages under the ECHR will similarly have to reach a high threshold in medical negligence claims.