Case Commentary: Maguire [2019] EWHC 1232 (Admin);
The Applicability of Parkinson in a DOLS case
Introduction
In this Judicial Review the High Court considered the decision of R (Parkinson) v Kent Senior Coroner [2018] EWHC 1501 (Admin), [2018] 4 WLR 106 in a case where the deceased was subject to DOLS under the Mental Capacity Act 2005 and died whilst a patient in hospital.
Summary of Facts
Jacqueline Maguire (Jackie) died in hospital of a perforated ulcer with peritonitis and pneumonia. She had Down’s syndrome together with moderate learning difficulties and had lived for more than 20 years in a care home in Lytham St Anne’s, Blackpool. Like other residents, Jackie had been deprived of her liberty under the Mental Capacity Act 2005 to the extent that she was prevented from leaving the home without supervision.
In the week prior to her death, Jackie appeared to become progressively and seriously unwell. Against that background there was evidence of a series of failings by different medical professionals and carers at the care home to appropriately triage, act or communicate in a timely or adequate manner in relation to Jackie’s worsening condition. There was also evidence that there had been inadequate consideration of Jackie’s history of Down’s Syndrome and learning difficulties.
A few days before the inquest commenced, the judgment in R (Parkinson) v Kent Senior Coroner [2018] EWHC 1501 (Admin), [2018] 4 WLR 106 was handed down. At the Inquest the Coroner considered Parkinson and its applicability and ruled that allegations against Jackie’s carers and healthcare providers amounted to allegations of individual negligence, which Parkinson had clarified as falling outside the state’s obligations under Article 2. The Claimant challenged this ruling before the High Court.
The Judicial Review
According to Parkinson where a state has made provision for securing high professional standards among health professionals and for the protection of the lives of patients, matters such as errors of professional judgment or negligent coordination among health professionals will not be sufficient to engage Article 2.
The High Court also observed that the positive duty under Article 2 will not always be engaged by what Lord Dyson in Rabone v Pennine Care NHS Trust (INQUEST and others intervening) [2012] UKSC 2 called the “paradigm example” of detention, namely, where the state has detained an individual, whether in prison, a psychiatric hospital, an immigration detention centre or otherwise. In particular, death by natural causes will not engage Article 2 in the absence of any reason to believe that the state failed to protect the life of the individual in question (R (Tyrrell) v HM Senior Coroner County Durham and Darlington and Ministry of Justice [2016] EWHC 1892 (Admin)).
The High Court drew the following two principles from the case law: First, in the absence of systemic or regulatory dysfunction, Article 2 may be engaged by an individual’s death if the state has assumed responsibility for the individual’s welfare or safety. Secondly, in deciding whether the state has assumed responsibility for an individual’s safety, the court will consider how close was the state’s control over the individual.
In the instant case the High Court held that whilst there were individual failings by those involved in Jackie’s care they were not capable of demonstrating systemic failure or dysfunction. As to the responsibility which the state assumed here, Jackie was a vulnerable person for whom the state provided care. It was held that a person who lacks capacity to make certain decisions about his or her best interests – and who is therefore subject to DOLS under the 2005 Act – does not automatically fall to be treated in the same way as for example where the state has detained an individual in a prison, a psychiatric hospital, or in an immigration detention centre. As the court observed:
“Where the state has assumed some degree of responsibility for the welfare of an individual who is subject to DOLS but not imprisoned or placed in detention, the line between state responsibility (for which it should be called to account) and individual actions will sometimes be a fine one. However, it was the function of the Coroner to draw it. This court will not interfere save on grounds of irrationality or other error of law”.
Alexandra Tampakopoulos for the Professional Discipline Summer Newsletter
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