The Supreme Court’s view on the engagement of Article 2 ECHR

R (on the application of Maguire) v HM Senior Coroner for Blackpool and Fylde [2023] UKSC 20

In its eagerly anticipated judgment, the Supreme Court has unanimously dismissed an appeal which sought to challenge the Senior Coroner’s decision in relation to the engagement of Article 2 of the European Convention on Human Rights (ECHR) for a resident of a care home under a standard Deprivation of Liberty Safeguards (DoLS) authorisation. The Equality and Human Rights Commission and disability charity, MIND, were both intervening parties and have commented on their disappointment with the judgment.

The facts

Jacqueline “Jackie” Maguire resided in a care home under a Deprivation of Liberty Safeguards (DoLS) as she lacked mental capacity. She had Down’s syndrome. On 16 and 20 February 2017, Jackie reported gastro related symptoms. On 21 February 2017, Jackie lost consciousness and care home staff called for an ambulance. The paramedics attended and advised Jackie should be transferred to the nearest A&E department for further treatment. However, Jackie refused. Advice was sought from an out of hours GP who agreed Jackie should be transferred to A&E but if she continued to refuse, she could remain in the care home for ongoing observation. On 22 February, Jackie’s condition had significantly deteriorated and a further ambulance was called. Paramedics attended and transported Jackie to hospital where she sadly suffered a cardiac arrest and passed away due to a perforated gastric ulcer.

Inquest

The Senior Coroner opened an inquest and ruled at a procedural hearing that Article 2 ECHR was engaged on the basis of an arguable breach of the systemic duty, thereby extending the scope of the inquest to include “how and in what circumstances” did Jackie come by her death. Whilst the long jury inquest was taking place in Blackpool, the High Court judgment in Parkinson v HM Senior Coroner for Kent was handed down which ruled that individual failings in the course of ordinary medical treatment do not amount to systemic failings and therefore do not engage Article 2 ECHR.

Weightmans acted for and advocated on behalf of an Interested Person at the original inquest hearing and after hearing the entirety of the evidence and submissions from legal representatives, the Senior Coroner determined that Article 2 ECHR was not engaged thereby limiting the jury’s findings and conclusions to “how” Jackie came by her death, only. The jury subsequently returned a short form conclusion of “natural causes”.

Appeal

Jackie’s mother, Muriel Maguire, initiated a judicial review of the Senior Coroner’s ruling in relation to Article 2. The High Court ruled that the Senior Coroner did not err in law. However, an appeal was lodged at the Court of Appeal, which was dismissed. A further appeal was made to the Supreme Court which was heard between 22 and 23 November 2022.

Supreme Court judgment

In his detailed judgment, Lord Sales has provided a comprehensive analysis of the two types of positive obligations imposed on the state in accordance with Article 2 ECHR, namely the “the systems duty” and the “the operational duty”.

The systems duty

This duty imposes “an obligation to have appropriate legal regimes and administrative systems in place to provide general protection for the lives of citizens and persons in its territory” [10].

Lord Sales noted that it is only “in rare cases” [145] a care home or healthcare provider will be found to have breached this obligation. On the evidence, Lord Sales ruled “it was clear that systems in place at the care home were capable of being operated in a way which would ensure that a proper standard of care was provided to residents” [146]. He noted that although there “may have been individual lapses in putting them into effect” [146], as individual failings will not give rise to a breach of the systems duty pursuant to R (Parkinson) v Kent Senior Coroner [2018] EWHC 1501 (Admin), he ruled there was no arguable breach of the systems duty by actions of the care home or other healthcare providers [181]; [184].

The operational duty

This duty imposes “an obligation to take operational steps to protect a specific person or persons when on notice that they are subject to a risk to life of a particularly clear and pressing kind” [10].

Lord Sales indicated when an individual is placed in a Care Home, the state does not assume responsibility for “all aspects of their physical health” [190] and even if someone is deprived of their liberty, such as Jackie, the duty does not impose an obligation on the state to become a “guarantor of the adequacy of healthcare provided…” [190]. The court determined the care home’s responsibility to Jackie was to “look after Jackie in substitution for her family” [199] by ensuring “she could have access to healthcare available to the population” [199]. Lord Sales noted that if care home staff did not seek medical attention for Jackie’s care, this may have amounted to a breach, but as they did, there was no arguable breach of the operational duty by the care home [204].

In relation to the other healthcare providers, Lord Sales ruled that no other healthcare professional was not “on notice Jackie’s life was in danger so as to engage the operational duty” [208]. He further commented that the paramedics gave “proper consideration to the question whether she [Jackie] ought to be removed” [208] for treatment and reasonably considered “the risk to her was not so great to make that appropriate” [208]. The court therefore indicated there was no arguable breach of the operational duty on the part of other healthcare providers [209].

Conclusion

This is a rare judgment from the Supreme Court in relation to inquests. Whilst it illustrates the importance for care homes and healthcare providers to have appropriate systems in place to protect life, their duty under Article 2 ECHR will only exist when healthcare providers have knowledge or ought to have knowledge of a specific risk.

In essence, the judgment maintains the status quo from an Article 2 ECHR perspective for care homes and healthcare providers. It is unambiguous that the state does not assume the responsibility for all risks pertaining to a care home resident under a DOL. Furthermore, being unwell does not necessarily indicate a risk to life sufficient to engage the state’s operational duty.