High Court considers Article 2 inquests in medical cases

21 May 2019 by Matthew Flinn

R (Maguire) v HM’s Senior Coroner for Blackpool and Fylde [2019] EWHC 1232 (Admin) – Read Judgment

A three-judge panel of the Divisional Court has re-affirmed that, in general, medical inquests do not engage the State’s positive obligations under Article 2 of the European Convention on Human Rights.

Jackie Maguire had Down’s Syndrome, moderate learning difficulties, and severely compromised cognitive and communication abilities. On 22nd February 2017, she tragically died from a perforated ulcer at the age of 52, having developed symptoms starting with a sore throat around one week previously. For around 20 years prior, she had been living in care, and at the time of her death, following a capacity assessment under sections 1 – 3 of the Mental Capacity Act 2005, her place had been maintained by Blackool City Council in a care home from where she was not allowed to leave without supervision.

An inquest hearing before the Senior Coroner for Blackpool and Fylde proceeded on the basis that the State’s positive obligations to protect life under Article 2 of the European Convention on Human Rights (“ECHR”) were engaged, and it was accordingly an “Article 2” inquest. As many practitioners will know, the practical effect of designating an inquest as an Article 2 inquest is often limited in terms of the scope and nature of the evidence elicited, but it can have an important impact on the way the conclusions from the inquest are framed, and also on practical matters such as whether the family of the deceased are entitled to funding for representation.

However, at the conclusion of the inquest and prior to considering his summing up and the matters to be left to the jury, the Coroner decided that, in light of the decision in R (Parkinson) v HM’s Senior Coroner for Kent [2018] EWHC 1501 (Admin) (see further below), Article 2 was not in fact engaged based on his assessment of the evidence he had heard. He also decided that it would not be appropriate to leave the potential conclusion of “neglect” for the jury’s consideration. Those were the two decisions challenged by Jackie’s family in these judicial review proceedings. This post focuses on the first, which involves the human rights issue.

In the inquest hearing itself, the Coroner heard evidence of what might be characterised as a series of deficiencies (or at least missed opportunities) to assess and provide treatment to Jackie as her condition deteriorated, including omissions to call a GP when first requested by Jackie, decisions not to take Jackie to hospital, and failures by GPs who were consulted to elicit and act upon all appropriate information about her condition.

At paragraphs 30 – 49 of the judgment, the Divisional Court gives a useful and succinct summary of the structure of the substantive Article 2 obligations imposed on the State, and how and when they are engaged. In summary, under Article 2 there is:

1. A negative obligation not to take life unlawfully;
2. A positive “framework” obligation to have in place effective criminal and other legal provisions, together with enforcement machinery, for the prevention and punishment of crime and the protection of life; and
3. A positive “operational” obligation to take steps to protect a person where the State knows or ought to know that someone is at real and immediate risk of death.

As the court explained, that “operational” obligation originally arose in the criminal context (i.e. a need to protect people at real and immediate risk of having fatal crimes perpetrated against them), but it has extended beyond that point to arise whenever someone is in such a dependent position that the State can be said to have assumed responsibility for protecting that person’s life. Template examples of this situation are where someone is in prison, or detained in a mental health facility.

The Court then considered (at paragraph 38) the case of Parkinson, as follows:

The Coroner in the present case applied the guidance in Parkinson which held, at paragraph 87, that where a state has made provision for securing high professional standards among health professionals and the protection of the lives of patients, matters such as errors of professional judgment or negligent coordination among health professionals in the treatment of a particular patient will not be sufficient to engage article 2. In reaching this conclusion, the court in Parkinson reflected the reasoning of earlier cases such as Powell v United Kingdom (2000) 30 EHRR CD 362. Parkinson is now authority for the proposition that a medical case (in which negligent medical treatment may incur liability in tort) will not generally engage article 2.

It went on to emphasise at paragraphs 44 – 45 that the key principle in relation to the operational obligation is the need for circumstances giving rise to assumption of responsibility towards the deceased:

That the case law has extended the positive duty beyond the criminal justice context in Osman is not in doubt. The reach of the duty, beyond what Lord Dyson called the “paradigm example” of detention, is less easy to define. We have reached the conclusion, however, that the touchstone for state responsibility has remained constant: it is whether the circumstances of the case are such as to call a state to account: Rabone, para 19, citing Powell. 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.

Applying these principles to the present case, we have carefully considered the chain of events in the days before Jackie’s death: Dr Adam’s failure to make a home visit; Dr Fairhead’s failure to triage properly or to elicit a full history from carers; the paucity of advice from NHS111; the difficulties experienced by Ms Ayres and her colleague who had not been notified that Jackie had Down’s syndrome and who found themselves unable to take Jackie to hospital. It may fall to others to decide whether any failures give rise to individual civil liability or professional disciplinary proceedings. They are not, however, capable of demonstrating systemic failure or dysfunction. Such failings as there may have been were attributable to individual actions and do not require the state to be called to account.

In relation to the present case, the court acknowledged that Jackie had been extremely vulnerable. She was not permitted to leave the care home unaccompanied, and she was completely dependent on the assistance of others. Nevertheless, the court held that in this case, where Jackie was not actually imprisoned or detained, whether there was a sufficient assumption of responsibility was a matter of the Coroner, and the court would not interfere in the absence of him making some legal error or reaching an irrational decision, which it concluded that he had not.

Matthew Flinn is a barrister at One Crown Office Row.