The Supreme Court has handed down its 65-page judgement in Maguire:
The judgement is the end of the road for the case and deals with its journey through the various networks of Article 2 arguments, signposting the routes and identifying the potholes along the way.
This article highlights some of the signposts:
The appeal was brought on behalf of the deceased’s family. ‘Jackie’ as they wished her to be referred, died in hospital in February 2017 aged 52 from Pneumonia, perforated gastric ulcer and peritonitis. She had been living in a care home in Lytham St Annes. In short, the case focussed on the acts and omissions of the various medical providers and her care home who were responsible for Jackie’s care.
At the original inquest the coroner provisionally decided that Art 2 was not automatically engaged but that there were arguable grounds that it had been breached in terms of affording Jackie access to medical treatment she needed. The organisations in the sights were (1):
i) The care home
ii) The ambulance Service
iii) The GPs or the hospital trust (or a combination of both)
Between the pre-hearing review and the inquest, the decision in the case of Parkinson (2) was handed down
At the close of the evidence the coroner decided that the Art 2 enhanced procedural obligation did not apply to the circumstances of this case and consequently, section 5 Coroner’s and Justice Act 1999 did not require or permit a direction to the jury requiring an expanded conclusion. In effect, a Jamieson (3) conclusion was appropriate not a Middleton (4) one. That is the nub of the case.
In the Supreme Court the family of the deceased did not argue that the automatic enhanced investigative obligation arose, but that there was an arguable breach of either the systems duty or the operational duty because Jackie:
i) Was deprived of her liberty
ii) Was vulnerable because of her difficulties in communicating and her lack of mental capacity to make judgements about her own health
iii) Was in the care of the state in a care home which had assumed responsibility to keep her secure, safe and that she had timely access to healthcare services.
The appellant needed to successfully argue that at the time the coroner made the ‘verdict decision’ the enhanced procedural obligation applied, so that an expanded (Middleton) verdict was required.
The area of argument needed to cover the boundaries between the systems duties and the operational duties and their contents.
The Supreme Court expressed approval of Popplewell LJ’s analysis of the duties in Morahan (5) where he set out that there are three levels of graduated investigative procedure.
Substantive Positive Obligations imposed by Art 2 on a state:
a) The Systems duty – An obligation to have appropriate legal regimes and administrative systems in place to provide general protection for the lives of citizens and persons in its territory
b) The operational duty – An obligation to take operational steps to protect a specific person(s) when on notice that they are subject to risk to life of a particularly clear and pressing kind.
Investigative Obligations are procedural in nature in order to require the state to be called to account in appropriate cases.
1) Basic Procedural Obligation-requires the manner of death to be investigated to decide whether appropriate law should be applied as part of the system in place to protect life or whether the system is deficient (For example, was the death due to natural causes or a criminal act).
2) Enhanced Procedural Obligation (automatic) – the state may be required to take the initiative to investigate possible breaches of the substantive obligations with a view to ensuring appropriate accountability and redress as appropriate. This is triggered by a compelling reason why the state should be required to give an account on how a person came by their death (For example where the state has used lethal force, deaths in detention other than by natural causes etc..).
3) Redress Procedural Obligation – Where the relevant compelling reason for 2) is not present but their remains a possibility that the substantive obligations have been breached. The complainant should have the opportunity to ventilate their complaint, having investigated it and obtain redress.
(Typically, negligence alleged in a medical setting (6) or other negligently caused deaths).
It was argued that the Court of Appeal erred in;
i) Following Dumpe (7)
ii) Limiting the scope of Para 163 of Fernandes (8)
iii) Deciding Rabone (9) flowed from the Strasbourg case law and distinguishing Jackie’s case from Rabone.
The Supreme Court determined the answers to four questions:
(a) Was there an arguable breach of the systems duty on the part of the care home?
The care home system is part of a regulated framework monitored and enforced by the CQC. The position was essentially the same as the systems duty in relation to the provision of healthcare services – that only in very exceptional circumstances would the substantive responsibility of the state under Art 2 be engaged in respect of acts and omissions. The court indicated that the systems duty in the area operates at a high level and is relatively easily satisfied. There is no sound basis for adopting a different approach to the provision of care in a care home as distinct from a hospital environment. The court drew a distinction between individuals detained by the state and those subject to Deprivation of Liberty orders, the latter being for their own benefit where the loss of liberty is an incidental feature of vulnerability. Ultimately, the court rejected the submission that the enhanced procedural obligation arose by reason of an arguable breach of the systems duty of the care home.
(b) Was there an arguable breach of the systems duty on the part of healthcare providers?
The analysis followed closely the same approach as for (a) above. The court approved the approach of Powell, Calvelli, and Fernandes as being applicable. Whilst criticisms could be made of individual practitioners, the suggestion that the enhanced procedural obligation arose by reason of an arguable breach of the systems duty was dismissed.
(c) Was there an arguable breach of the operational duty on part of the care home?
The family submitted that the enhanced procedural obligation arose because of an arguable breach of the operational duty due to a combination of Jackie’s deprivation of liberty, vulnerability and an assumption by the state for Jackie’s care. The first two factors do not distinguish the case from allegations of medical negligence and the applicable principles. The operational duty must be examined and defined as a duty to take reasonable steps to avoid a specific risk. The enhanced procedural obligation in the context of an operational duty arises if it can be shown, there was an arguable breach of the operational duty targeted on a specific risk to life which was known or which ought to have been known. It goes onto identify that it must be a risk, which the authorities had a special responsibility to protect against. In the present case, the operational duty applied to care home staff in a graduated way depending on their perception of risk to Jackie. They were not medically trained. They were tasked to look after Jackie in the same way as her family could. If the care staff had done nothing to seek medical advice in respect of the health problems of which they were aware Jackie was experiencing that might have constituted a breach of the operational duty, but they did seek medical advice and ensured Jackie was given access to healthcare available to the population generally. They were then entitled to rely on the medical professional’s judgement. Therefore, it was not arguable that there was a breach of the operational duty.
(d) Was there an arguable breach of the operational duty on the part of the healthcare provider?
The critical issue being the decision not to take Jackie to hospital before the risk of death as identified by Dr. Goode increased. The healthcare professionals thought hospitalisation was ‘advisable’ but did not consider her life would be in danger. Other countervailing factors included; the care home was an environment, which promoted Jackie’s autonomy, she had good relations with her carers and her own preferences and decisions needed to be respected. Taking someone to hospital against their wishes is a complex decision to make. In addition, none of the healthcare professionals involved were on notice that her life was in danger. The court therefore decided that the argument that there was a breach of operational duty could not be maintained.
The decision seems to mark out the familiar authorities and principles as being correct and maps out the same route as they did. The no entry signs remain visible for expanding the Art 2 arguments to cases such as these. The judgement is comprehensive and cannot be fully replicated within these few paragraphs, which are only intended to be a pointer. The adoption of the earlier authorities and clarity of approach defining the boundaries of each category of Art 2 triggers might restrict future arguments in favour of Art 2 inquests. The use of the term ‘arguable’ as opposed to ‘reasonably arguable’ might not discourage so many as the SC possibly intended.
(1) In the light of Rabone and Another v Pennine Care NHS Foundation Trust  UKSC 2.
(2) R (Parkinson) v Kent Senior Coroner  EWHC 1501 Admin.
(3) R v HM Coroner for Humberside and Scunthorpe ex p Jamieson  QB1.
(4) R (Middleton) v West Somerset Coroner  2 AC 182.
(5) R (Morahan) v West London Assistant Coroner  EWCA Civ 1410.
(6) Must be systemic, not individual failings R v Parkinson v Kent Senior Coroner  EWHC 1501 (Admin).
(7) Dumpe v Latvia 16/10/18.
(8) Fernandes v Portugal (2107) 66 EHRR 28.
(9) Rabone v Pennine Care NHS Trust  2 AC 72.