Case Note on the Supreme Court case of R (Maguire) v The Coroner for Blackpool & Fylde [2023] UKSC 20
The long running case of Maguire has finally been concluded in a Supreme Court judgment handed down last week. The bottom line is and remains that the threshold for Article 2 remains high in cases involving health and social care. The case is particularly helpful for its detailed and comprehensive analysis of the authorities and the relevant legal principles in relation to the application of Article 2 and is a must read for those practising in the coronial area.
The facts
The case concerned the conduct of an inquest into the death of Jacqueline Maguire (JM) in hospital from pneumonia and a perforated gastric ulcer and peritonitis. JM had Down’s Syndrome, in addition to learning disabilities and behavioural difficulties. She lived in a care home and her placement was paid for and supervised by Blackpool City Council. For her own care and safety, she was not permitted to leave the care home without supervision and was subject to a Deprivation of Liberty Safeguarding Order (DoLS) under the Mental Capacity Act 2005. She was considered a vulnerable adult with no insight and was totally dependent on staff at the care home for her day-to-day care.
In February 2017, JM became ill and an ambulance was called by care home staff. JM was fearful of medical interventions and sought to avoid them. When paramedics attended and advised that she go to hospital JM refused to go with them. Whilst the paramedics were concerned that JM did not have the capacity to weigh up for herself the consequences of not attending hospital they were not qualified to administer sedation and were concerned that if they used force the likelihood of harm or injury were very high and disproportionate to the state she was in. On the advice of a GP, on the basis that JM was stable and would be monitored, she was allowed to stay in the care home overnight (a decision at inquest the GP accepted was poor). The next day JM’s condition had worsened and she was taken to hospital where she died as result.
The Appeal
In essence, the Appellant argued at all stages of appeal including at the Supreme Court that JM lacked capacity to make any decisions herself and accordingly those charged with her care should have ensured a protocol was in place to facilitate her admission to hospital not withstanding her refusal. As a result, it was argued that the absence of such a system was an arguable breach of JM’s rights under Article 2 which triggered the state’s procedural obligation (also under Article 2) to investigate her death and record a conclusion in respect of the broader circumstances applying the Middleton approach.
The Judgment
Lord Sales gave the leading judgment to which there was no dissent. In it he outlined, inter alia, the applicable legal framework for an Article 2 inquest (paras 8-24), the requirement for an expanded conclusion under the Coroners and Justice Act 2009 (paras 25-33), the development of the substantive positive obligations under Article 2 by the European Court of Human Rights (paras 144-181) and, of course, the issues in the appeal (paras 135-209).
Legal Framework for Article 2
Lord Sales observed that in addition to prohibiting certain conduct, Article 2 imposes a positive obligation on states to take appropriate steps to safeguard the lives of those within their jurisdiction (LCB v UK). Two substantive positive obligations flow from this: (1) The systems duty which requires there to be an appropriate legal regime and administrative system in place to provide general protection for the lives of citizens and; (2) the operational duty which requires operational steps to be taken to protect a specific person or persons when on notice that are subject to a risk of life if a particularly clear and pressing kind. The distinction between the two has been emphasised at the highest level in the domestic case law and the Strasbourg case law.
In addition, Article 2 imposes a procedural obligation as regards the nature of the investigation and the opportunity to call state authorities to account for potential breaches of the substantive obligations. Lord Sales observed the following:
“The precise content of the procedural obligation on a state varies according to the context in which an issue regarding the application of article 2 arises. There is no simple monolithic form of procedural obligation which applies in every such case. Rather, the procedural obligation applies in a graduated way depending on the circumstances of the case and the way in which a particular context the state may be called upon to provide due accountability in relation to the steps taken to protect the right to life” (para 12).
He explained that the graduated nature of the procedural obligation reflects the fact that this obligation (like the substantive obligations) is an implied positive duty which is not to be taken to impose “an unreasonable or disproportionate burden” on the state.
Lord Sales identified three different levels of graduated procedural obligation as follows:
(1) A basic procedural obligation – to check whether there might be any question of a potential breach of a person’s right to life under Article 2. State authorities should take some steps to establish whether the cause of death is from natural causes rather than as result of criminality. The basic procedural obligation arises immediately upon death and will inform whether other procedural obligations come into play (Morahan).
(2) An enhanced procedural obligation – to take further steps to investigate possible breaches of substantive obligations imposed by Article 2 with a view to ensuring appropriate accountability and redress and, as appropriate, with a view to punishing persons responsible for the death. This obligation 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 death, for example, where the state has used lethal force or where a person has died in prison other than from natural causes.
(3) A redress procedural obligation – arises where a relevant compelling reason is not present as the foundation of an enhanced procedural obligation, but there is still a possibility that the substantive obligations in Article 2 have been breached. In these circumstances there is an obligation to provide means by which a person complaining of such possible breaches may ventilate that complaint, have it investigated and obtain redress.
Lord Sales notes that a substantial body of case-law has held that in relation to cases of arguable medical negligence in an NHS hospital, the enhanced procedural obligation does not apply and the state’s procedural obligation (in the form of the basic procedural obligation and the redress procedural obligation) is satisfied by a combination of the holding of an inquest to determine the cause of death, without any requirement of an expanded conclusion, and the availability of a civil claim for damages for negligence (citing Goodson, Takoushis, Humberstone, Parkinson).
The Issues on Appeal
Was there an arguable breach of the systems duty on the part of the care home or any of the healthcare providers, so as to trigger the enhanced obligation under Article 2?
As in the context of all healthcare services, in care homes, the systems duty operates at a high level and will often be satisfied by the existence of a system capable of being operated in a timely and effective way. Generally, individual lapses or failures within such systems, even negligent failures, will not amount to a breach of the systems duty. In this case the Supreme Court found that there were systems in place capable of being operated in a way in which would facilitate a proper standard of care was provided to JM notwithstanding the fact that there may have been individua lapses.
Notably, the Court was critical of the Appellant’s attempt to “reverse engineer” its case in terms of trying to formulate the obligations said to be owed under the umbrella of the systems duty, by “looking at what happens to have gone wring in Jackie’s case and then trying to formulate an alleged obligation tailored to that case”. It was said 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.
Was there an arguable breach of the operational duty on the part of the care home or healthcare provider so as to trigger that obligation?
The Supreme Court found there was no such breach. The state does not assume responsibility for all aspects of an individual’s physical health when they are a resident in a care home or a hospital. That is regardless of whether they are under a DoLs. The existence of the operational duty can only be determined by the appreciation of risk and the immediacy of that risk. In the present case, the care home was tasked with ensuring that JM could access appropriate medical care which it had done by contacting the GP and the ambulance. It was not on notice, nor could it have been on notice, as to the risk to JM’s life. And none of the healthcare professional involved were on notice that JM’s life was in danger. The paramedics, who had the ultimate decision about taking JM to hospital, had properly considered the question of whether she ought to be removed there and made an assessment which was reasonable in the circumstances. The case did not fall within the “very exceptional circumstances” recognised in the European case of Fernandes that is: (1) where an individual patient’s life is knowingly put in danger by denial of access to life-saving emergency treatment or (2) 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 or ought to have known about that risk and failed to undertake the necessary measures to prevent that risk from materialising. It was held that this matter had been thoroughly explored at inquest and, particularly in light of the expert evidence, there was no arguable case that there had been a breach of duty.
Comment
The bottom line is that the Maguire case has changed little and indeed reaffirmed the fact that it remains the case that the threshold for Article 2 is high in cases involving health and social care. In those relatively few cases where there is an arguable breach of the systems or operations duty the procedural obligation which is triggered will be graduated. This reflects the fact that this obligation (like the substantive obligations) is an implied positive duty which is not to be taken to impose “an unreasonable or disproportionate burden” on the state.
As an aside, it is with some surprise that the Supreme Court were not reminded that ‘verdicts’ are no longer used in the inquest context and were indeed abolished by the CJA 2009 in order to emphasise the true nature of the inquest process as fact-finding rather than blame apportioning.
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