Article 2, Inquests and Medical Negligence: What can we learn from the decision in (R) Maguire v Her Majesty’s Senior Coroner for Blackpool?
Having delivered a webinar entitled “Article 2, Inquests and Covid-19: An Update” on the 4th June 2020, it would stand to reason that the Court of Appeal would hand down a lengthy and important judgment in a very relevant case just one week later, on the 10th June 2020.
Maguire is an important decision, helpfully setting out the complexity of both UK and Strasbourg jurisprudence as it has emerged post-Rabone and taking into account the decisions in Lopes de Sousa and Fernandez de Oliveira which respectively considered where the operational duty under Article 2 might apply in medical cases, and then whether that operational duty was engaged in circumstances where a psychiatric patient was voluntarily admitted to a hospital but escaped and committed suicide. Questions of sufficient vulnerability were vital to the distinction where the operational duty applied and where it did not. The Judgment, delivered by Burnett LJ, contains a useful summary of the applicable law in this sometimes complicated and confusing area. I have cited the relevant paragraphs below for ease of reference.
Further, the decision in Maguire outlines important distinctions that arise as between the law relating to breaches of Article 2 ECHR and medical negligence claims more generally. This will provide practitioners with useful guidance as to the applicable threshold for where medical negligence cases end, and valid claims under the ECHR begin. This article seeks to set out how the Court of Appeal reached their decision, and how the law has been affected going forward by Maguire.
In Maguire, the Coroner was concerned with the death of Jacqueline (“Jackie”) Maguire, who lived in a small care home with Down’s Syndrome and serious learning difficulties. She was unable to look after herself and lacked capacity to take decisions regarding her own welfare and health. The care home had obtained a deprivation of liberty safeguard (DoLS) under section 4 and 1A of the Mental Capacity Act 2005.
In April 2017, Jackie had been suffering from a stomach ailment. A few days later, on the 21st February 2020 she was feeling unwell and had what appeared to staff at her care home to be a fit. They called an ambulance. When paramedics arrived, they assessed Jackie and wanted to take her to hospital for further assessment given the “fit” but Jackie refused to go. It was not the first time that Jackie had refused medical attention. An out of hours GP was contacted, and given that Jackie seemed otherwise “well”, it was decided that she should stay at the care home and be monitored overnight. It would be inappropriate to manhandle Jackie and force her to attend hospital.
The next morning, Jackie had a further “fit”. An ambulance was called and found that Jackie was in shock. She was transferred to hospital, but sadly died later that evening.
At the Inquest into Jackie’s death, the coroner called evidence and assembled a jury in line with the obligation to consider whether or not Article 2 was engaged and whether there had been a breach of Jackie’s rights under the ECHR. The coroner at a Pre Inquest Hearing determined that Article 2 ECHR was engaged and therefore conducted the inquest on this basis. However, at the conclusion of the evidence, the coroner reconsidered the position in light of the decision of R (Parkinson) v Kent Senior Coroner which had been handed down shortly before the hearing had begun. Relying on this decision, the Coroner ruled that the allegations against the Appellant’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. In those circumstances, the jury was not directed to deliver an expanded conclusion. Jackie’s family applied for a judicial review of the coroner’s decision. The application for judicial review contended that the Coroner was wrong to conclude that Article 2 did not apply. The application was not successful. The family appealed to the Court of Appeal.
The Court of Appeal
In the Court of Appeal, the Appellant asserted that there had been “a structural or systemic dysfunction which prevented life-saving treatment” being given to Jackie. There should have been an advance plan in place, given Jackie’s history of needing sedation in connection with blood tests, to get her to hospital in the face of opposition. It was submitted that there was a real and immediate risk of death for the purposes of article 2 by the evening of 21 February of which the paramedics and GP should have been aware. There was reason to suppose that the state failed in its operational duty to protect Jackie’s life. Therefore, the procedural obligation arose and the coroner should have allowed the jury to return an expanded conclusion in accordance with section 5(2) of the 2009 Act.
Those of you who heard the webinar will have noticed the importance of the Rabone decision for UK jurisprudence relating to Article 2 inquests. As Lady Hale said in her judgment in that case:
However, in certain circumstances, the state’s positive obligation to protect life goes further than that. It entails an obligation to take positive steps to prevent a real and immediate risk to the life of a particular individual from materialising. In Savage, the House of Lords held that this obligation arose in the case of a psychiatric patient detained in hospital under the Mental Health Act 1983. In reaching that conclusion, the House of Lords was not following any exact Strasbourg precedent. There was then, and still is, no Strasbourg decision cited to us which concerns a psychiatric hospital patient, whether informal or detained, as opposed to a mentally ill prisoner or detainee. There is a line of Strasbourg cases, beginning with Powell v United Kingdom holding that:
“. . . where a contracting state had made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, it cannot accept that matters such as error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a contracting state to account from the standpoint of its positive obligations under article 2 of the Convention to protect life.” (emphasis supplied)
Rabone remains good law, and having been decided in 2012, long pre-dated the decision of the Strasbourg Court in Fernandez de Oliveira which resolved the main dispute and provided additional Grand Chamber guidance on how to approach the ancillary question (i.e. that the substantive duty was owed to voluntary psychiatric patients but in assessing whether there had been a breach (i.e. applying the Osman test of “real and immediate risk”) the standard applied would be less strict than for detained patients).
The Appellant further asserted (in Ground 2) that, even if this was not a case that fell under the Fernandez de Oliveira/Rabone criteria, the operational duty was still engaged because it was a medical case with features of such gross negligence that the coroner still ought to have allowed the jury to return an expanded conclusion in line with Lopes de Sousa.
Lopes de Sousa is an important decision, because it draws the distinction between cases involving medical negligence, and those in which there has been a breach of the State’s obligation to protect a medical patient’s life. Mr de Sousa died after contracting a hospital acquired infection and developing complications following surgery to remove nasal polyps. The case was referred to the Grand Chamber. It confirmed that in cases involving alleged medical negligence the State’s positive obligations were regulatory, “including necessary measures to ensure implementation, including supervision and enforcement” (para.189). It continued by noting that in “very exceptional circumstances” a state may be responsible under the substantive limb of article 2 . It enumerated those circumstances between paras 191 and 196.
191: First, “a specific situation where an individual patient’s life is knowingly put in danger by denial of access to life-saving emergency treatment. It does not extend to circumstances where a patient is considered to have received deficient, incorrect or delayed treatment”
- Secondly “where a systemic or structural dysfunction in hospital services results in a patient being deprived of access to life-saving treatment and the authorities knew or ought to have known about the risk and failed to undertake the necessary measures to prevent the risk from materialising, thus putting the patients’ lives, including the life of the particular patient concerned, in danger”
The Grand Chamber devised a strict test to determine whether the exceptional circumstances were satisfied in any given case. It identified four cumulative factors: (a) The acts or omissions of the health care providers “must go beyond mere error or medical negligence, in so far as the health care professionals, in breach of their professional obligations, deny a patient emergency medical treatment despite being fully aware that the person’s life is at risk if that treatment is not given” (para. 194); (b) The dysfunction “must be objectively and genuinely identifiable as systemic or structural in order to be attributable to the state authorities, and must not merely comprise individual instances where something may have been dysfunctional inthe sense of going wrong or functioning badly” (para. 195); (c) There must be “a link between the dysfunction complained of and the harm which the patient sustained (para. 196); (d) “The dysfunction in issue must have resulted from the failure of the state to meet its obligations to provide a regulatory framework …” (para. 196)
In Maguire, therefore, the Court of Appeal had to grapple with both this test, and the Fernandez de Oliveira/Rabone contentions. Those of us who practice in this area have become well-acquainted with claims ostensibly founded on a breach of the Human Rights Act/ECHR, but which are in actual fact medical negligence cases. As I explained in the webinar, merely because a death has resulted in a “Article 2 Inquest” it does not necessarily follow that there has been a breach of the state’s Article 2 obligations. Very often, that an Inquest is deemed to engage “Article 2” will not change the quality or the extent of the evidence called. All that is required is that these questions are considered carefully by the coroner. Indeed, the point of Maguire was that the coroner in that case, having heard all of the evidence, decided that Jackie had died of natural causes and directed the jury to return a short narrative conclusion that did not include any finding under s5(2) of the 2009 Act.
The Court of Appeal found a strong analogy between the circumstances of Jackie’s death and that of a Mr Dumpe, considered by the Strasboug Court in Dumpe v. Latvia (App. No. 71506/13). In that case, the applicant’s son, who suffered from Down’s Syndrome and epilepsy had been in long term state care since he was 16 in 2007. He was admitted to hospital but died on 17 April 2012. The direct cause of death was heart failure, but he also suffered from acute hepatitis B, organ dystrophy and extensive psoriasis. His mother’s complaint was that her son’s medical problems had been ignored by health professionals in the state social care home in which he had been resident since 2009. The applicant complained of a violation of article 2 ECHR because her son had not been provided with adequate medical assistance, in particular because the medical staff at the care home and the general practitioner who had last seen him before his death had not reacted to the deterioration in his condition.
The Court of Appeal said that “the decision in Dumpe may not represent “clear and constant jurisprudence of the Strasbourg Court” but there is no decision of that court to which our attention has been drawn which suggests that the operational duty is owed to those in an analogous position to Jackie in connection with seeking ordinary medical treatment. To hold that the operational duty was engaged in this case would certainly be to move beyond any jurisprudence of the Strasbourg Court”.
“In our judgment, the coroner was right to conclude that, on the evidence adduced at the inquest, there was no basis for believing that Jackie’s death was the result of a breach of the operational duty of the state to protect life. It followed that the procedural obligations on the state identified in Jordan did not arise. For the purposes of the inquest the conclusions were governed by section 5(1) of the 2013 Act and in particular “how Jackie came by her death” rather than “how and in what circumstances”.
As for whether the circumstances of Jackie’s death engaged those duties in a medical negligence case with regard to the test in Lopes de Sousa, (Ground 2) the Court said:
“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.”
Further, the Court decided that they 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.”
The appeal was therefore dismissed. Although the Court did not make this explicit, it appears as though Jackie’s family may have grounds to pursue a medical negligence case against the carers and doctors involved in her care – but that the coroner was correct to consider that neither the Rabone/Osman/Fernandez de Oliveira line of authority nor Lopes de Sousa mandated any further findings of breach of Jackie’s Article 2 ECHR rights.
Clearly, this area of law is still developing. As ever, each case will turn on its own facts. However, it should be clear from this decision that the threshold for pursuing an ECHR claim in a medical negligence case will be very high and parties should be alternately wary or watchful depending on their positions.
  EWCA Civ 738, 2020 WL 03064467
  UKSC 2
  EWHC 1501 (Admin)
 (2000) 30 EHRR CD 362, 364
 Jordan v United Kingdom (24746/94) (2003) 37 E.H.R.R.