The Supreme Court provides authoritative guidance on the application of Article 2 to Coronial investigations and inquests
28 June 2023
Introduction
The advent of the Human Rights Act 1998, and the incorporation into domestic law of the Article 2 right to life, has transformed coronial investigations and inquests over the last two decades. Lord Bingham’s magisterial creation of the ‘enhanced’ investigation and conclusion in R (Middleton) v West Somerset Coroner [2004] UKHL 10, [2004] 2 AC 182 (later adopted by Parliament) gave coroners greater responsibility to hold the state to account for deaths. That, in turn, has significantly improved the ways in which all inquests are conducted, not just those where Article 2 is found to be engaged. Inquests are no longer haphazard affairs. They are (ordinarily) carefully planned and structured processes; and their participants, the ‘interested persons’, are far more involved in assisting coroners with the task of identifying the proper scope of their investigations and the lawful ambit of their conclusions.
Article 2, then, has already conquered and occupied the terrain of the coroners’ courts and it is only at the frontiers of its application that legal skirmishes still occur. One such fight is the case of R (Maguire) v HM Senior Coroner for Blackpool & Fylde and another [2023] UKSC 20, which was argued before the Supreme Court on 22nd and 23rd November 2022, and in which judgment was given on 21st June 2023.
The central issue in the case was whether Article 2 required an enhanced inquest into the death of highly vulnerable woman, Jackie Maguire, who had become seriously unwell while in a private residential care home and had later died in hospital. The Supreme Court held unanimously that it did not. More importantly, in doing so, it took the opportunity to provide a detailed and authoritative account of how Article 2 applies to coronial investigations and inquests.
Of particular importance are the following findings:
- Inquests involving allegations of negligence by care home staff or medical practitioners will not ordinarily engage the Article 2 enhanced procedural obligation and therefore require a Middleton conclusion.
- Only in rare cases involving the provision of healthcare services will it be arguable that there has been a breach the Article 2 systems duty – which operates at a high level and is relatively easily satisfied.
- Likewise, in such cases it will be exceptional for it to be arguable that there has been any breach of the Article 2 operational duty – this will depend on the specific risk of which the authorities are aware and which they have a special responsibility to protect against.
- Coroners should keep Article 2 procedural obligation in mind throughout the course of their investigations – expanding their ambit if breaches of Article 2 become arguable and reducing their ambit if it becomes clear at any point, including at the start or at the conclusion, that no such breaches have occurred.
Jackie’s death
Jacqueline Maguire, known as Jackie, was born on 28 April 1964. She had Down’s Syndrome, learning disabilities, behavioural difficulties, and restricted mobility. From 1993 onwards, she lived in a care home paid for and supervised by Blackpool City Council and managed by United Response, a private residential care provider. She was subject to a Deprivation of Liberty Safeguards (DoLS), granted by the Council under the Mental Capacity Act 2005. A psychiatric assessment in 2016 had found that Jackie was a vulnerable adult with no insight and was totally dependent on staff at the care home for her day-to-day care. She was also fearful of medical interventions, which she sought to avoid.
Jackie became ill from 16th February 2017 onwards. She was not eating well and had a sore throat and diarrhoea. On 21stFebruary 2017, she had breathing difficulties, serious pain in her stomach, and a fit. Her GP made a telephone diagnosis of viral gastroenteritis and a urinary tract infection. Ambulance paramedics attended after she collapsed later that evening. They and the care home staff tried to persuade Jackie to go to hospital for assessment, but Jackie refused and the paramedics did not think her condition was sufficiently serious to warrant transfer against her wishes. They contacted an out-of-hours GP, who, without asking for detailed observations, advised that Jackie should be monitored overnight, and her GP called in the morning.
By the morning of 22nd February 2017, Jackie was acutely unwell and repeatedly collapsing. A second ambulance was called. This time its crew concluded that it was in her best interests to use light restraint to take her to the Blackpool Victoria Teaching Hospital. Following her arrival, she was treated for presumed sepsis, but died that evening. A subsequent post-mortem revealed that for several months she had been suffering from a 3cm gastric ulcer which had perforated, resulting in peritonitis.
Jackie’s care home was registered with the relevant regulator, the Care Quality Commission (CQC) and was subject to regular inspections. The CQC had inspected the home shortly after Jackie’s death and had been satisfied with the systems in place and with the standard of care that it provided.
The inquest
The Coroner opened the inquest on 3rd August 2017. At the first pre-inquest review hearing (PIRH) on 8th September 2017, he rejected a submission by Jackie’s family that Article 2 was engaged on the basis of arguable breaches of any substantive Article 2 obligations. At the second PIRH on 18th December 2017, he maintained this view. However, following the decision of the Strasbourg Grand Chamber in Lopes de Sousa Fernandes v Portugal (2017) 66 EHRR 28 (‘Fernandes’), he changed his mind, ruling that Article 2 was engaged on the grounds of arguable that the care home, the ambulance service, the GPs, and/or the hospital, failed afford Jackie access to the treatment that she needed.
The inquest was held before a jury from 20th to 29th June 2018, shortly after the Divisional Court decision in R (Parkinson) v Kent Senior Coroner [2018] EWHC 1501 (Admin), [2018] 4 WLR 106, in which the Divisional Court rejected the argument that the systemic duty should apply to the investigation of a death resulting from ‘ordinary’ negligence by hospital staff. Evidence was adduced from 30 witnesses, including the care home staff, the paramedics, the GPs, and several independent medical experts. At the close of the evidence on 28th June 2018, the Coroner invited further submissions on the engagement of Article 2 and the form of conclusion to be left to the jury. The next day he ruled that the inquest had clarified matters to such a degree that Article 2 was not engaged in any relevant way, so section 5 of the Coroners and Justice Act 2009 did not require or permit a direction to the jury to give an expanded conclusion. He also rejected a submission that it was open to the jury to make a finding of neglect. He subsequently directed the jury to give a short Jamieson-style conclusion (named after the leading House of Lords decision in R v HM Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1). They found that Jackie had died of natural causes.
Proceedings in the Divisional and the Court of Appeal
Mrs Maguire, Jackie’s mother, issued judicial proceedings seeking declarations that Article 2 was engaged. She also argued that Coroner erred in law in withholding the issue of neglect from the jury. However, this point was not ultimately pursued to the Supreme Court. The Divisional Court dismissed the claim ([2019] EWHC 1232 (Admin), [2019] Inquest LR 143), holding that the Coroner’s assessment was not irrational and involved no errors of law; and that it was open to him to conclude that this was a medical case within the guidance given in Parkinson.
Mrs Maguire appealed to the Court of Appeal, primarily on the grounds that Jackie was owed an operational Article 2 duty due to her undeniable vulnerability, coupled with the DoLS authorisation, as a result of which an expanded conclusion was required. The Court rejected this argument and dismissed the appeal ([2020] EWCA Civ 738, [2021] QB 409), relying on Fernandes and the unreported decision of the Strasbourg Court in Dumpe v Latvia (Application No 71506/13) 16 October 2018.
The judgment of the Supreme Court
The Supreme Court unanimously rejected Mrs Maguire’s appeal. Judgment was given by Lord Sales, with whom Lord Reed, Lord Lloyd-Jones and Lady Lloyd agreed without giving judgments. Lord Stephens provided a concurring judgment.
The law
Lord Sales first identifies the two substantive duties imposed on the state: the ‘systems duty’ to have appropriate legal and administrative systems in place to provide general protections for the lives of persons in its territory, and the ‘operational duty’ to protect a specific person or persons when on notice that they are subject to a ‘risk of a particularly clear and pressing kind’ [10] (a phrase with which Lord Stephens takes issue: see below).
Drawing heavily on the judgment of Popplewell LJ in the Divisional Court in R (Morahan) v West London Assistant Coroner [2021] EWHC 1603 (Admin), [2021] QB 1205 (covered on this blog here), he goes on to identify the ‘different levels of graduated procedural obligation’ in respect of the investigations of deaths:
- The ‘basic procedural obligation’, which arises immediately on death and whose purpose is to ‘check whether there might be any question of a potential breach of a person’s right to life’ [14]. It will be satisfied where there is no evidence of a breach of the systems or operational duties (Tyrrell v HM Senior Coroner County Durham and Darlington [2016] EWHC 1892 (Admin), 153 BMLR 208; Kats v Ukraine (2008) 51 EHRR 44).
- The ‘enhanced procedural obligation’, which ‘applies where there is a particularly compelling reason why the state should be required to give an account of ow a person came by their death’ [15]. The specific types of cases in which it arises include those where state agents have used lethal force (McCann v United Kingdom (1996) 21 EHRR 97); or where a person has died in prison other than by natural causes (Edwards v United Kingdom (2002) 35 EHRR 487; R (Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2004] 1 AC 653; Middleton) [16].
- The ‘redress procedural obligation’, which arises ‘in certain other cases where a relevant compelling reason is not present as the foundation for an enhanced procedural obligation, but there is still a possibility that the substantive obligations in article 2 have been breached’ [19]. A typical example is a case involving allegations of negligence in respect of the provision of medical services (Calvelli and Ciglio v Italy (Application No 32967/96) 17 January 2002) [19]; where the ‘courts have been cautious about implying extensive positive obligations in the application of article 2’ (Fernandes and Fernandes de Oliveira v Portugal (Application No 78103/14) (‘Oliveira’) [22]. It will be satisfied by a combination of holding an inquest without an enhanced conclusion, and the availability of a civil claim (R (Goodson) v Bedfordshire and Luton Coroner [2004] EWHC 2931 (Admin), [2006] 1 WLR 432) [20].
Lord Sales charts the familiar advent of the ‘enhanced inquest’ following the Human Rights Act 1998, the decision in Middleton, and the Coroners and Justice Act 2009, section 5 of which placed Middleton on a statutory footing [25-29]. He goes on to set out why rulings on the engagement of Article 2 are so important in coronial proceedings:
30. Nonetheless, by reason of the interaction of the substantive obligations under article 2 and the enhanced procedural obligation, a ruling that the enhanced procedural obligation arises in a particular case may often imply a judgment that the substantive obligations are engaged and that one or other of them has arguably been breached. Therefore, the issue in this appeal has implications beyond simply the form of the verdict which the jury was asked to give in this case. Where a public authority such as an NHS trust breaches the substantive positive obligations inherent in article 2 it may be sued for compensation for breach of its duty under the HRA to act compatibly with that Convention right: Savage, para 72 (Lord Rodger).
31. The question whether an enhanced procedural obligation under article 2 is engaged in a relevant way in relation to an inquest has additional consequences in practice. Where it appears that an expanded verdict may be required, because it is thought the enhanced procedural obligation is applicable, legal aid will be available to assist with the involvement of the deceased’s family by the provision of legal representation. This was the issue which arose in Humberstone.
He also explains how coroners should approach the application of Article 2 as their investigations evolve – in some cases diverging towards a Middleton conclusion, in other cases converging on a Jamieson conclusion, as occurred during the inquest into Jackie’s death:
32. Also, a coroner will have to keep the implications of the article 2 procedural obligation in mind throughout the course of the inquest, to ensure that the examination of the circumstances of the death is sufficient to satisfy that obligation in the particular context. A coroner’s assessment of this might alter during the course of an inquest, as more information comes to light as a result of his or her inquiries. The ambit of the investigation might have to be expanded, if information gathered by the coroner suggests that a simple case appearing to involve no relevant state involvement is in fact more complicated and gives rise to an arguable breach of article 2, with the consequence that the enhanced form of the procedural obligation applies and there is a requirement for an expanded form of verdict. On the other hand, information gathered before the start of an inquest (see, eg, Morahan, para 71) or in the course of it may eliminate areas of uncertainty and show that there is no arguable breach of article 2 such as to require an expanded form of verdict. This occurred, for example, in Tyrrell…
Later in his judgment, Lord Sales looks more closely at the development of the substantive positive obligation by reference to the Strasbourg decisions in Osman, Powell v United Kingdom (2000) 30 EHRR CD362 and Calvelli [34-39]. He then examines the decisions in Fernandes and Oliveira, and more briefly the domestic decisions in Rabone v Pennine Care NHS Trust (INQUEST intervening) [2012] UKSC 2, [2012] 2 AC 72, and Parkinson [40-62]. He recognises that Fernandes definitively established that cases of medical negligence will not normally involve a violation of the substantive right to life [49]. The two exceptions to this are where ‘an individual patient’s life is knowingly put in danger by denial of access to life-saving emergency treatment’ (para 191), or ‘where a systemic or structural dysfunction results in a patient being deprived of access to life-saving treatment and the authorities knew about or ought to have known about that risk and failed to undertake the necessary measures to prevent that risk from materialising’ (para 192) [50].
From Oliveira, Lord Sales draws out three important themes. First, a stricter standard of scrutiny will apply to those cases where the vulnerability of the deceased is particularly high [57-58]. Second, operational choices must be borne in mind when considering the provision of public healthcare and other public services [58]. Third, in assessing the application of the operational duty, it is ‘relevant to take into account the wider interests of the vulnerable person who is said to be at risk, in terms of promoting their autonomy, integration into society and relationships of trust with those caring for them’ [59].
Application of the law to the facts
Lord Sales reformulates the issues on appeal into four basic questions.
(1) Was there an arguable breach of the systems duty on the part of the care home, so as to trigger the enhanced procedural obligation?
Answer: No. The Coroner was entitled to find that there was no such breach, relying in part on the findings of the CQC [144].
146. It is clear that the 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 at the home, even though there may have been individual lapses in putting them into effect. As explained in Humberstone, para 71, and Parkinson, para 91, individual lapses in putting a proper system into effect are not to be confused with a deficiency in the system itself. The same point was made in Fernandes, para 195 (para 50 above).
147. There is no sound basis for adopting a different approach to the provision of care in a care home as distinct from in a hospital or other healthcare environment. If anything, one would expect higher (or, at least, equivalently high) standards to be required according to the systems duty under article 2 as it applies to healthcare providers, as they will in many situations be directly on notice of a risk to life in relation to patients in their care to an extent going beyond what would usually be the case in a care home. The individual being cared for may be vulnerable and may suffer a loss of liberty in both environments, but this does not change the application of the systems duty in the healthcare context and it is difficult to see why it should make a significant difference in the ordinary care context. Moreover, in the healthcare context the scope of the systems duty is modulated to take account of the specific type of risk in relation to which the state has assumed a responsibility to protect the individual in the light of his or her specific circumstances, and there is no good reason to adopt any different approach in the ordinary care context.
Jackie’s vulnerability and loss of liberty was more analogous with a patient’s loss of autonomy in a hospital setting, than with a prisoner in a prison [148].
Lord Sales goes on to deprecate what he calls ‘reverse-engineering’ of a systems duty based on the facts of an individual case [159]. He clarifies that ‘the authorities show that the proper approach to the systems duty is more forward-looking than this, and requires an assessment of the systems which it is generally reasonable to expect the relevant body to have in place in advance of any particular incident.’ He also reiterates the principle ‘that it is not for the court, but rather for the competent authorities of a contracting state to consider how their limited resources should be allocated between competing priorities: Fernandes, para 175. This principle underscores how limited are the circumstances in which it will be appropriate to find a breach of the systems duty.’ [160]
(2) Was there an arguable breach of the systems duty on the part of any of the healthcare providers, so as to trigger that obligation?
Answer: No. Applying Powell, Calvelli and Fernandes [182], the system was appropriate and effective [183], despite individual lapses of performance [184].
(3) Was there an arguable breach of the operational duty on the part of the care home, so as to trigger that obligation?
Answer: No. The fact that the state has assumed a degree of responsibility for an individual does not automatically make it arguable that Article 2 is engaged:
186. The issue of assumption of responsibility raises the question, assumption of responsibility for what? The authorities show that the degree to which assumption of responsibility is a factor relevant to the operational duty under article 2 depends upon the specific risk to life of which the authorities were aware and which they understood had to be guarded against.
Applying Rabone, Fernandes, Oliveira, and Morahan:
190. When an individual is placed in a care home, a nursing home or a hospital, the state’s operational duty in the targeted sense derived from Osman, para 116, does not involve an assumption of responsibility extending to taking responsibility for all aspects of their physical health, with the consequence that if he or she dies from some medical condition which was not diagnosed and treated in time the state’s duty is engaged and the enhanced procedural obligation in terms of accountability is triggered. Even though the individual may not be at liberty, the state is not for that reason made the guarantor of the adequacy of healthcare provided to them in all respects, with an enhanced obligation to account if things go wrong. That would not be consistent with the established approach in relation to cases of alleged medical negligence and the approach adopted in the suicide risk cases discussed above.
Whether or not Article 2 is engaged will depend on ‘the specific risk of which the authorities are aware and which they have a special responsibility to protect against’ (Morahan, Tyrrell, Kats) [193-198]. So in Jackie’s case ‘the operational duty applied to the staff at the care home in a graduated way, depending on their perception of the risk to Jackie’ [199]. The care home staff were aware that she was experiencing serious health problems and took appropriate steps to seek medical advice and call an ambulance [204].
(4) Was there an arguable breach of the operational duty on the part of any of the healthcare providers, so as to trigger that obligation?
Answer: No. Jackie’s care home was intended to be an environment in which her autonomy was promoted, and she was treated with dignity and respect [206]. Critically, ‘None of the healthcare professionals involved was on notice that Jackie’s life was in danger, so as to engage the Osman operational duty.’ [208]
Lord Stephens’ judgment
Lord Stephens concurred with Lord Sales and his short judgment is of little consequence. Of note, however, is that he takes issue with Lord Sales’ use of the phrase ‘risk to life of a particularly clear and pressing kind’, preferring to stick to the Osman criterion of a ‘real and immediate risk to life’ [241]. He’s right, though no one reading Lord Sales’ judgement would conclude that he was seeking to reformulate the longstanding operational duty test.
Concluding comments
The Supreme Court’s judgment is long, repetitious, and overwrought. It also uses outmoded terminology. Inquest ‘verdicts’ have now been known as ‘conclusions’ for many years, distinguishing them more clearly from the findings of the criminal courts. People are no longer said to ‘commit suicide’, which carries judgmental connotations of criminal wrongdoing and sinfulness. Instead, they ‘die by suicide’.
Nevertheless Lord Sales’ explanation of the legal principles governing the application of Article 2 to inquests is masterly and a welcome return to form after the Supreme Court’s last, disastrous, foray into coronial law in the muddled majority decision in R (Maughan) v Oxfordshire Senior Coroner [2020] UKSC 46, [2021] 1 AC 454 (covered on this blog here). So, despite its flaws, the judgment deserves close reading by all those with a professional interest in the inquest process.
One final point is worth noting. Midway through his judgment, Lord Sales expresses a degree of frustration at the fact that the Coroner’s counsel took a studiously neutral stance in the appeal, making submissions on the general legal framework, but not addressing the appellants arguments on their merits and not ensuring that all of the relevant facts were before the court [117]. This, he says grumpily, necessitated the Justices having to inform themselves of the underlying material and evidence that was originally put before the Coroner.
Lord Sales therefore takes the opportunity to issue guidance to prevent such a situation recurring:
In future, I would suggest that in a situation like this the onus on counsel for a coroner, whilst remaining neutral, is to act as an amicus curiae (advocate to the court) and assist to ensure that the court is given the full factual picture, including if necessary by drawing the court’s attention to matters not emphasised or omitted by a claimant, as well as alerting it to relevant law and authorities.
Peter Skelton KC is a barrister at 1 Crown Office Row chambers.
This blog is run by 
