Article 2 in healthcare inquests: 7BR members’ commentary is published on the Maguire case

The following article, written by Sarah Edwards, Rose Harvey-Sullivan and Jasmine Leng, was published in the November 2023 issue of the AvMA newsletter, available here.

R (on the app. of Maguire) v His Majesty’s Senior Coroner for Blackpool & Fylde and another

In a judgment handed down on 21st June 2023, the Supreme Court unanimously dismissed the appeal in R (on the application of Maguire) v His Majesty’s Senior Coroner for Blackpool & Fylde and another.

The appeal was long-awaited and hoped to clarify the application of Article 2 of the European Convention on Human Rights to inquests raising issues of healthcare. In short, the Court has confirmed that Article 2 of the Convention is rarely engaged in healthcare inquest settings, except in specific and exceptional circumstances.

Legal Background

Article 2 ECHR provides that ‘everyone’s right to life shall be protected by law. No-one shall be deprived of his life intentionally save in the execution of a sentence of a court.’

The legal starting point to this appeal can be found in Rabone v Pennine Care NHS Foundation Trust [2012] 2 AC 72, which determined that the duties under Article 2 can be broken down as follows:

• A negative duty not to take life save in the exceptional circumstances set out in Article 2(1).
• A positive duty to protect life which comprises:

1. The general ‘substantive’ or ‘systems’ duty  upon the state to implement legislative and administrative frameworks which protect the right to life. In the public health sphere, this requires states to enact regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of patients’
2. The ‘operational’ duty to implement measures to protect individuals in specific circumstances from ‘a real and immediate risk to life where the state knows, or ought to know, of that risk’ (Osman v UK (1988) 29 EHRR 245).
   • A procedural positive duty (known as the ‘investigative’ or ‘procedural’ duty) to investigate deaths which may arguably amount to a breach of duty of any of the substantive

In R (Morahan) v West London Assistant Coroner [2021] EWHC 1603, it was held that there is no universal form of procedural duty which applies across all cases, but that there are three different levels:

2. The ‘basic procedural’ obligation, which requires steps to be taken to establish whether the cause of death was from natural causes, or whether there might be a potential breach of Article This might be satisfied by a police investigation, for example.
3. The ‘enhanced procedural’ obligation, which requires the state to take further steps to investigate possible breaches of Article 2 and is intended to provide accountability and redress. This applies where there is a particularly compelling reason why the state should be required to give an account of how a person came by their In some categories of case the enhanced procedural obligation is automatically  engaged,  such as deaths in custody, by virtue of the state’s degree of responsibility toward the deceased.
4. The ‘redress procedural’ obligation, which arises where there is no relevant or compelling reason giving rise to an enhanced procedural obligation, but there is still a possibility that a substantive Article 2 obligation has been This can be satisfied by the ability to pursue a civil claim in negligence, for example.

In cases raising issues of arguable medical negligence, the enhanced procedural obligation rarely applies, and an inquest and the availability of a civil claim in negligence have generally been held to be sufficient to satisfy the state’s procedural obligation (R v Goodson) v Bedfordshire and Luton Coroner [2006] 1 WLR 432).

Individual errors of judgment by medical professionals are almost never sufficient to engage Article 2 (LCB v United Kingdom (1998) 27 EHRR 212).

In Fernandes v Portugal (2017) 66 EHRR 28 the Grand Chamber clarified that article 2 is only engaged in exceptional healthcare inquests, namely where a) an individual’s life is knowingly put in danger by denial of access to life-saving treatment or b) where a systemic dysfunction results in a patient being denied access to life-saving treatment, and the authorities knew about and failed to mitigate that risk, thus putting lives, including that of the patient, in danger.

Facts of Maguire

The appeal concerned the death of Jackie Maguire, referred to throughout the judgment as ‘Jackie’. Jackie had Down’s Syndrome and learning disabilities. She lived in a care home for adults requiring  round-the- clock supervision where she was subject to a standard authorisation under the Deprivation of Liberty Safeguards (‘the care home’). Crucially, she was dependent upon the staff at the care home for her day-to-day care as well as for access to medical treatment should she need it.

Jackie was nervous about medical interventions and would require support on the occasions that treatment was required. On other occasions Jackie would refuse medical treatment. In the weeks before her death she experienced symptoms including stomach pains and collapsing. On 21 February 2017 she suffered fits, stomach pains and vomiting, but refused to go to hospital when an ambulance was called.

Paramedics were concerned that overriding her wishes by manhandling her risked causing her harm. An out-of- hours GP advised that, while Jackie should ideally attend hospital, her condition was not so serious that they should override her wishes and she was allowed to remain at the care home overnight. The following morning Jackie’s condition deteriorated, and she was admitted to hospital where she died of a perforated ulcer leading to cardiac arrest.

In the inquest that followed the Coroner determined, having heard evidence of the various systems said to be in place at the time of Jackie’s death, that the enhanced Article 2 procedural duty did not apply. He was therefore not required or permitted to make findings as to the wider circumstances in which Jackie died.

Appeal

The central issue was  whether  Article  2  required an ‘expanded verdict’, but the Supreme Court held unanimously on appeal that it did not. In a leading judgment by Lord Sales, the Supreme Court provided an authoritative review of the caselaw on Article 2 and the obligations owed. It created no new substantive legal principles but rather collated and approved the body of principles that have previously been applied in the earlier cases cited above.

At paragraphs 49 – 51, the Court referred to Fernandes v Portugal (2017) 66 EHRR 28 in which the Grand Chamber clarified as follows:

‘190. On the basis of the broader understanding of the states’ obligation to provide a regulatory framework, the court has accepted that, in the very exceptional circumstances described below, the  responsibility  of the state under the substantive limb of article 2 of the Convention may be engaged in respect of the acts and omissions of healthcare providers.

191. The first type of exceptional circumstances concerns a specific situation where an individual patient’s life is knowingly put in danger by denial of access to life-saving emergency  It  does  not  extend to circumstances where a patient is considered to have received deficient, incorrect or delayed treatment.
192. The second type of exceptional circumstances arises where a systemic or structural dysfunction in hospital services results in a patient being deprived of access to life-saving emergency treatment and the authorities knew about that risk and failed to undertake the necessary measures to prevent that risk materialising, thus putting patients’ lives, including the life of the particular patient concerned, in ’

The Court went on to consider the following four questions:

• Was there an arguable breach of the systems duty on the part of the care home, so as to trigger the enhanced procedural obligation?
• Was there an arguable breach of the systems duty on the part of any of the healthcare providers, so as to trigger that obligation?
• Was there an arguable breach of the operation duty on the part of the care home, so as to trigger that obligation?
• Was there an arguable breach of the operation duty on the part of any of the healthcare providers, so as to trigger that obligation?

Considering the first question, the Supreme Court held that, ‘the systems duty in this area services operates at a high level, is relatively easily satisfied, and it will only be in rare cases that it will be found to have been breached’ [145]. The Court re-emphasized that ‘individual lapses in putting a proper system into effect are not to be confused with deficiency in the system itself’ [146]. In this case, the Court held that the care home did have proper systems in place, such that there was no arguable breach of the systems duty.

On the second question, the Court again found that the failings identified were failings on the part of individual healthcare professionals, and not a general failure of the systems duty [182 – 184].

The third question required consideration of the state’s responsibility towards Jackie, as regarded Jackie’s placement in a care home. The Court determined that the care home had assumed responsibility to ensure she had access to the healthcare available to the population generally, and to guard against any specific risks to her health of which they were aware. As stated at paragraph 192: ‘as regards the enhanced procedural obligation in the context of the operational duty, it is only if the appellant can show that there was an arguable breach of the operational duty, targeted on a specific risk to Jackie’s life which was known or which ought to have been known that this obligation will be triggered.’

The care home, on behalf of the state, did not assume responsibility for all aspects of her physical health – rather it is a graduated assumption of responsibility dependent upon their perception of the risks. To this end, the Court concluded that there was no arguable breach on behalf of the care home of the operational duty [204].

Considering the final question, the Court again determined that there was no arguable breach of the operational duty. The Court considered a number of factors that had been at play when healthcare professionals had decided not to take Jackie to hospital, including the desire to protect Jackie’s autonomy and dignity, and concluded that the assessments undertaken had been reasonable in the circumstances [208].

Commentary

Whilst the judgment provides a useful and comprehensive overview of the Article 2 jurisprudence, particularly concerning inquests raising potential failings in healthcare, it has not altered the status quo for inquests sometimes characterised as ‘medical’ or ‘healthcare’ inquests. The position remains that Article 2 inquests involving deaths in care or medical settings will continue to be the exception. The threshold for an arguable breach of the systems duty remains high, and the operational duty is engaged only when it can be shown that the specific risk to health that materialised was known, or ought to have been known.

For bereaved families, and those navigating Article 2 on their behalf, the judgment will likely come as a disappointment. Many hoped that the decision of the Court of Appeal would be overturned allowing findings to be made regarding the broader circumstances by which Jackie came by her death.

This hope stemmed from frustration with the hurdles that come once an inquest is categorised as a ‘medical’ or ‘healthcare’ inquest. Refusal to grant an Article 2 inquest in such circumstances limits not only the scope of the inquest and the Coroner’s ability to make findings with regard to wider care provided, but also the legal funding available to bereaved families – all of which can limit engagement in the inquest or the scrutiny that can be achieved. This can be especially concerning when the deceased was particularly vulnerable and/or dependent for their care upon healthcare providers, as was the case for Jackie.

In Maguire, the Court made clear that the existence of individual lapses of the system does not suggest that there is no system, or that the systems duty is engaged. One argument that may be anticipated is where a system arguably exists in theory but is so poorly implemented that it is arguably non-existent in reality. Practitioners representing families and NHS Trusts will be familiar with relatively  common  failings  which  include  the poor implementation of systems for supporting those with communication needs; systemic dismissive or discriminatory attitudes towards those with learning disabilities resulting in missed opportunities or diagnoses (a common example missed being opportunities to treat sepsis); or the sorts of care coordination or continuity issues which can arise when there are multiple providers. In the context of the operational duty, Lord Sales emphasised that the correct approach was to focus upon the specific risks to Jackie’s health of which the authorities were aware or ought to have known. He cited the factors set out by Lord Dyson in Rabone as relevant to a finding an assumption of responsibility in the context of provision of care for a vulnerable person to include heightened vulnerability due to their physical or mental condition and “the nature of the risk.”

Following Maguire, it remains the case that each case must be considered on its own facts. There may well have been a very different result in Jackie’s case if, for example, the care home had failed to call an ambulance or GP, despite being aware of her serious ill health and vulnerability. In seeking to persuade the coroner that there has been an arguable breach of the operational duty, practitioners will need to identify evidence of serious and pressing risks to the individual patient, that put the healthcare provider on notice of a risk to life. However, Maguire makes plain that the potential to argue for the application of Article 2 in care or healthcare settings, by virtue of the deceased’s vulnerability or dependence upon others for care, is limited.

It should be noted that different considerations apply to both involuntary and voluntary psychiatric patients, where there is an operational duty to protect the patient from a real and immediate risk of suicide of which the hospital is aware. The nature of the risk posed by such a patient is different to a patient in an ordinary hospital setting due to their reduced capacity to make a rational decision. Where the patient is involuntary, or the level of risk is of such a degree to warrant detention of a voluntary patient, Lord Sales noted that a ‘stricter standard of scrutiny’ is applied.

In Maguire the Supreme Court made it clear that a Coroner’s assessment of whether Article 2 applies (and whether the inquiry is sufficient) may alter throughout the course of the inquest as more information comes to light. Thus, the ambit of the enquiry may need to be expanded if it later appears that Article 2 is engaged, and vice versa. This is what happened in Maguire, where the Coroner initially determined that Article 2 was engaged on the basis that there had been an arguable breach of Article 2 in terms of affording Jackie access to treatment [99], but after hearing evidence, including evidence of the systems in place at the time, the Coroner ruled that he was satisfied that the investigation had sufficiently clarified matters such that Article 2 was no longer engaged [108].

Lord Stephens suggested that until an inquest is underway, and the real issues can be identified, there may be no proper way to assess whether there is an arguable breach of Article 2. Coroners will therefore need to proceed on the basis that there is a need for an expanded verdict and then review the position at the end of the evidence. Practitioners representing families of vulnerable patients can be expected to seize on these comments to argue at the Pre-Inquest Review that the inquest should at least commence as a ‘full’ Article 2 inquest. This at least will allow families to have a full inquest into the circumstances of their loved one’s death and may well entitle the family to public funding. Adjournments of inquests may also become more commonplace, if during the inquest, an arguable breach of Article 2 is identified.

For practitioners representing bereaved families Maguire is simultaneously disappointing reading, and a helpful reminder of the law in this complicated area.

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