Scope of the duties on the state to protect life under Article 2 ECHR (R (Maguire) v HM Senior Coroner)

In R (Maguire) v HM Senior Coroner for Blackpool & Flyde & Others [2020] EWCA Civ 738, the Court of Appeal considered whether the enhanced procedural duty to investigate death under Article 2 ECHR applied to the inquest touching upon the death of a vulnerable individual subject to the Deprivation of Liberty Safeguards (‘DoLS’) under the Mental Capacity Act 2005 living in a care home. The Court of Appeal’s judgment is an important authority on the scope of the substantive positive duties on the state to protect life under Article 2 ECHR.

James Robottom and Rose Harvey-Sullivan, barristers at 7BR, consider the case including whether it has any bearing on the present COVID-19 pandemic.

The facts

Jackie Maguire, 52, had moderate learning difficulties and Down’s syndrome. She used a wheelchair when outside and had significant communication and cognitive difficulties. She had lived in a small residential care home for 24 years, funded by her local council, and was subject to a standard DoLS under Schedule A1 to the 2005 Act. The home was for adults with learning disabilities who required personal care. The staff had neither medical nor nursing training. Jackie was ‘neither physically capable nor sufficiently aware to be able to leave the home on her own’ [para 53].

During the week prior to her death Jackie had a limited appetite and had complained of a sore throat. In the two days before she died she had a raised temperature, diarrhoea and vomiting. She asked to see a GP on 20 February, but staff at the care home did not take steps to arrange this. They called NHS 111 on 21 February, who recommended they contact the GP. Multiple subsequent alleged failings by clinical workers external to the care home, including an out of hours GP and ambulance paramedics, led to Jackie staying in the care home to be monitored overnight. The following morning she was taken to hospital, where she was found to be severely dehydrated with kidney failure, metabolic acidosis, and severe infection. She died later that day.

Article 2 inquests

In accordance with s.5 and s.10 of the Coroner’s and Justice Act 2009, where the procedural investigative Article 2 ECHR duty is engaged, an inquest must consider not just how, but ‘how and in what circumstances’ someone came by their death. That has important consequences, in particular for the nature and format of the conclusions reached at an inquest. The procedural Article 2 duty is engaged where there has been an arguable breach by the state of one of its substantive duties to protect life. In Maguire the issue was whether there had been an arguable breach of either the operational duty to protect certain individuals from a real and immediate risk to their life, or the general duty to put in place a regulatory framework sufficient to protect life.

Decisions by the lower courts

The coroner in Maguire initially decided the Article 2 procedural obligation was engaged. However, after hearing the evidence he revised this decision on the basis of the decision of the Grand Chamber of the ECtHR in Lopes de Sousa Fernandez v Portugal (2018) 66 EHRR 28. Consequently, the procedural duty did not apply. The inquest in Maguire was heard by a jury, and as a result of this decision there could be no judgment or conclusion of a judgmental nature reached at the end of the case.

Jackie’s family brought a claim for judicial review of this decision. They also challenged the coroner on the basis that he had erred in law in failing to leave the question of neglect to the jury. The Divisional Court dismissed the family’s claim on both grounds. Irwin LJ stated ‘In the absence of either systemic dysfunction arising from a regulatory failure or a relevant assumption of responsibility in a particular case, the state will not be held accountable under article 2’ [para 44; [2019] EWHC 1232 (Admin)]. The Court found that this test was not met in Jackie’s case.

Court of Appeal

The Maguire family appealed on the basis that either the operational duty had been breached (ground 1), or the general duty had been breached as there were systemic clinical failures which prevented life-saving treatment (ground 2), and that there was a failure to take account of the wider context of the fact that those with learning difficulties are more likely to die prematurely (ground 3). The Court of Appeal’s decision focussed largely on the operational duty issue. The court noted the expansion of DoLS applications since the decision of the Supreme Court in Cheshire West v Chester County Council [2014] 1 AC 896. The family’s case was that the DoLS authorisation was not in itself determinative of the existence of the duty. The heart of the family’s argument was that ‘the undeniable vulnerability of an individual in Jackie’s position, coupled with the fact of a DoLs authorisation, dictate[d] that she was owed the operational duty under article 2 ECHR with the result that the procedural obligation explained in Middleton applied and the jury should have been able to comment on the quality of medical care provided to Jackie and the absence of any plan for emergency admission’ [para 70].

Grounds 1 and 3

In considering grounds 1 and 3, the Court of Appeal held that the operational duty had not been breached. In doing so it grappled at length with existing domestic and ECtHR case law. Its reasoning was as follows:

1. The unifying feature of the application of the operational duty is state responsibility [para 72].
2. ‘It is important, however, to focus on the scope of any such duty and why it might be owed.’ [para 71] The ‘article 2 substantive obligation is tailored to harms from which the authorities have a responsibility to protect those under its care.’ [para 73] ‘[T]he fact that an operational duty to protect life exists does not lead to the conclusion that for all purposes the death of a person owed that duty is to be judged by article 2 standards’ [para 74]. i.e. There must be a correlation between the purpose for which the duty to protect was imposed and the nature of the subsequent alleged failure to protect life. The court cited authority on prisoners –Tyrell v HM Senior Coroner for County Durham and Darlington [2016] EWHC 1892 (Admin), and soldiers - Smith v Oxford Coroner [2011] 1 AC 1, in order to support this conclusion.
3. The case did not fall into the category of cases where the state has assumed responsibility to protect individuals from a risk of self-harm or suicide. Whereas the ECtHR has 'always considered mentally ill persons to be particularly vulnerable’, the reasons for the imposition of the duty in respect of detained [1] and voluntary [2] mental health patients therefore did not apply. Neither was it a case of intentional killing and the duty to protect from the criminal acts of third parties as per Osman v UK (2000) 29 EHRR 245 (1998).
4. The court relied heavily upon the Strasbourg case of Dumpe v Latvia (App No 71506/13). Dumpe was an admissibility decision by the Fifth Section of the ECtHR. The Court of Appeal considered Dumpe to be closely factually analogous to Jackie’s case. In Dumpe, the ECtHR had concluded that the operational duty does not by default apply to the provision of medical care to someone in a care home. In that case the Applicant argued that her son had died because of a failure to provide adequate medical care by medical staff at the social care home. The ECtHR therefore felt that the complaint pertained to ‘medical negligence in the care provided to her son’ (para 57, Dumpe). The court held that the Applicant had not exhausted her domestic remedies.
5. Ultimately, the question of whether article 2 applies is not black and white: ‘the article 2 operational duty is owed to vulnerable people under the care of the state for some purposes’ [para 96]. The court cited the Strasbourg authority in Câmpeanu v. Romania [GC] (App. No. 47848/08), and Nencheva v. Bulgaria (App. No 48606/06), regarding inadequate care provided in orphanages and care homes as establishing that state responsibility will be engaged in such a context (or in a care home), where death arises from a person being kept in appalling conditions, or where there is a shortage of staff or medication, including where the state is aware of those allegations [paras 72, 97].

Having established the above framework the court held that the alleged failures in Jackie’s case were of a purely medical nature. She had been seeking ‘ordinary medical treatment’ [para 99] outside of the care home environment from the NHS, meaning ‘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 deprivation of liberty whilst in their care’ [para 101]. The court further dismissed Ground 3 on the basis that evidence that those with learning disabilities have a lower life expectancy than those without generally shone no light on the question whether the operational duty had been breached in Jackie’s case [paras 103-104].

Ground 2

Having held that the relevant failures related to ‘ordinary medical treatment’, the court made short work of dismissing ground 2. The principles in relation to the general duty to put in place an adequate regulatory framework to protect life, as authoritatively set out by the Grand Chamber of the ECtHR in Lopes de Sousa (see paras 194-196 of that judgment), did not apply. There was no arguable systemic dysfunction.  

The effect of the decision

Importantly, whilst clearly this decision reduces the likelihood that the operational duty will apply in a DoLS medical case, it does not rule out that possibility. Rather, it indicates that the court must consider the scope of any operational duty owed and judge the circumstances of the death by reference to it. If, for instance, someone subject to a DoLS died of a condition or event connected with the reason behind their deprivation of their liberty, it is submitted that different principles should apply, and a breach may well be found. Similarly, if the care home had failed to care for Jackie’s day to day needs through neglect leading to her death, arguably, a different result would have been reached. Indeed, it is of note that the decision cites the negative admissibility decision of the ECtHR in Watts v UK (2010) 51 EHRR SE 66 as authority for the application of the operational duty to cases where the transfer of vulnerable and frail elderly residents between care homes gives rise to a real and immediate risk to life. The Strasbourg court has applied the operational duty in a much wider range of factual circumstances than the domestic courts. Maguire does not seek to reduce these, rather it attempts to establish an analytical framework by which different factual scenarios can be judged.

How does this judgment square with others?

It is somewhat surprising that the court used Dumpe and Lopes de Sousa as cornerstones for this decision, given neither case concerned detained people. In Lopes de Sousa, the Grand Chamber clearly set out that different considerations would apply to people deprived of their liberty and/or those considered particularly vulnerable – para 163. The Court of Appeal in Maguire held that that caveat ‘does not affect the outcome in a case of this sort’ [para 99], but did not explain why that is the case. The ECtHR has always considered those in state detention to be a particularly vulnerable group warranting the protection of Article 2. The lack of focus by the Court of Appeal on the detention issue is surprising. Further, the court did not cite the High Court authority in Daniel v St George’s Healthcare NHS Trust [2016] EWHC 23 (QB). In Daniel, the court deemed that Article 2 was engaged in circumstances where Mr Daniel died in prison from a heart attack and there were real concerns around the medical care provided to him. The operational duty applied to the medical treatment within prison of detainees who were at a real and immediate risk to life. This is arguably more analogous to the facts of Jackie’s death than Tyrell, the prisoner case the Court of Appeal did cite, in which Mr Tyrell died in prison of natural causes and in which, for that reason, article 2 was not engaged. In Daniel Lang J surveyed the ECtHR case law and stated that ‘medical practitioners, both inside, and outside a prison setting, are also subject to the article 2 duty, as well as prison officers and police officers.' It may be that the court in Maguire was concerned that the blanket imposition of an operational duty to protect life in respect of those subject to DoLs would be unworkable, given the recent rise in numbers. However, the result of the decision is that Article 2 will be engaged in respect of the medical treatment of certain state detainees and not of others. An analytical framework was imposed on the operational duty which is not explicitly stated in previous judgments of the domestic courts or the ECtHR. Practitioners dealing with DoLS cases must now look carefully at the reasons for the imposition of the deprivation and whether there is a link between that and any harm suffered.

Does the judgment in Maguire have any bearing on the present COVID-19 pandemic?

Over the past few months we have seen that care home residents – many of them vulnerable and/or subject to DoLS – are particularly at risk of dying from COVID-19. Amidst recent lockdown relaxations, scientists and medics have warned of the likelihood of a ‘second wave’ of COVID-19 infections, meaning we could face the same difficulties again in the near future.   

The key point here is that the ‘article 2 substantive obligation is tailored to harms from which the authorities have a responsibility to protect those under its care.’ [para 73]. The scope of the operational duty depends on the specific facts of each death.

The transfer of care home residents has been held by the ECtHR to engage the operational duty – Watts v UK. But the knowledge that care home residents are particularly at risk, combined with the fact that those who are there under DoLS are in the care of the state, may trigger state accountability on a wider basis, and thus be a basis upon which to argue that the operational duty applies to such residents generally. This is particularly so if it could be shown that the location in which an individual was being deprived of their liberty by the state was itself a contributory factor to their death.

Despite it being widely accepted that care home residents were particularly at risk during the first wave of COVID-19 infections and deaths, the government has given no indication that it will launch any kind of inquiry into this. On that basis, it is also worth bearing in mind the arguments raised in ground 2 of the Maguire appeal: the state must put in place an adequate regulatory framework to protect life. If they know that care home residents are more at risk than other groups, but fail to take steps to investigate what can be done to minimise this risk in the future or to set up a framework to improve their safety, article 2 may also be engaged on this basis.

Appeal

It will be interesting to see if the Court of Appeal’s judgment is appealed. Given the importance of the questions raised, it is to be hoped that the Supreme Court will take the opportunity to authoritatively review the complex issues in this area of law.