Inquest Team E-Bulletin: Care in the community – when will Article 2 be engaged?

This article looks at some relevant cases over the last few years to assist practitioners with the thorny problem of identifying the circumstances in which Article 2 may be engaged for a patient who is receiving care in the community. It is intended as a brief overview of the relevant decisions, seeking to draw out the key principles that can be applied to other cases.

In R (Lee) v HM Assistant Coroner for Sunderland [2019] EWHC 3227, the mother of the deceased sought to challenge the Coroner’s decision that Article 2 was not engaged on the facts of the case. The deceased had been an outpatient under the care of the local NHS Trust’s mental health team, having been in and out of inpatient settings over a four-year period prior to her death. She died from a drug overdose the day after voluntarily discharging herself from A&E, having expressed a wish to be formally detained.

The claimant sought to establish arguable breaches of the operational and/or systemic duties so as to justify a finding that Article 2 was engaged. It was argued that the Trust owed an operational duty to the deceased, applying the Rabone criteria of (1) assumption of responsibility, (2) nature and extent of the deceased’s vulnerability, and (3) the nature of the risk. The High Court found the Coroner had only considered the question of the assumption of responsibility, which she had equated with control, and remitted the matter to the Coroner for her to consider further.

On the systemic-duty point, the claimant sought to criticise the care planning, arguing that this was evidence of a systemic failure. The Coroner relied on Powell v UK in asserting that because the Trust had made adequate provision for securing high professional standards among health professionals, individual errors of judgment in respect of care planning fell outside the scope of the systemic duty. This ground of appeal was dismissed, the High Court finding that there was no evidence of a Powell-based breach.

In R (Maguire) v HM Senior Coroner for Blackpool & Fylde [2020] EWCA Civ 738 the question was whether the fact that the deceased was subject to DoLS at the time of their death and was living in a residential care home paid for and supervised by the Local Authority, was sufficient to bring the death within the remit of Article 2. Having reviewed the case law, the Court of Appeal took the view that the Article 2 obligation “is tailored to harms from which the authorities have a responsibility to protect those under its care”, essentially deciding that rather than categorise cases as ‘medical negligence’ or ‘Rabone’ type cases, each had to be decided on its facts.

On the facts of this case, the death was not the result of squalid conditions in a care home, nor was the State aware (through regulatory inspections) of shortcomings giving rise to a risk of death. The circumstances of the deceased were not analogous with a detained psychiatric patient, and accordingly there were no grounds to justify a finding that Article 2 was engaged. The Court of Appeal found the facts of the case were similar to the decision of the Strasbourg Court in Dumpe v Latvia (App. No. 71506/13).

So far, so good. Rabone and Parkinson remain good law in terms of the distinction between Article 2 cases and ‘mere’ medical negligence cases, although Maguire suggests each case needs to be looked at on its facts, rather than adopting a binary approach.

Finally, in R (Morahan) v HM Assistant Coroner for West London [2021] EWHC 1603 (Admin) the Divisional Court considered whether Article 2 was engaged in circumstances where the deceased had died from an overdose in the community, having been a voluntary in-patient at a psychiatric rehabilitation unit. Four cases were of particular relevance: Rabone, Lopes de Sousa Fernandes, Fernandes de Oliveira (all referred to in Maguire) and Maguire.

In developing the principles that had been outlined in Maguire, the three-strong Divisional Court found that whether or not there is an operational duty “is informed by whether the nature of the control is linked to the nature of the harm.”

Applying that to the facts of the case, the Court found that there was no operational duty under Article 2, as there was no history to suggest the deceased was a suicide risk, nor was there any history of accidental overdose. As the Court put it by analogy, “A psychiatric hospital owes no duty to protect a patient, whether voluntary or detained, from a risk of accidental death from a road traffic accident whilst on unescorted leave.”

All in all, fairly one-way traffic from the higher courts, which appear to be reluctant post-Rabone to continue to extend the categories of cases in which Article 2 is found to be engaged. For practitioners representing organisations where the deceased has died in the community these recent authorities, and particularly Morahan, provide helpful assistance in resisting a submission that Article 2 is engaged simply because a State-linked organisation had a role in the deceased’s care.

Alexander West