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June 25, 2019

R (Maguire) v HM Senior Coroner for Blackpool & Fylde [2019] EWHC 1232 (Admin)

This case considered whether where there had been failings of professional judgment or coordination between professionals, the individual failings could be aggregated to a “gross failing” so as to allow a finding of neglect. It was argued that a coroner should have amalgamated individual failings which together presented a ‘picture amounting to neglect’.

A woman with Downs Syndrome who was living in a care home subject to DoLS died after there was an inadequate response from two of her GPs, 111, and the ambulance service for a variety of reasons. The cause of death was a perforated duodenal ulcer. She had requested a GP two days before her death and had been symptomatic to some degree for a week, severely symptomatic for 48 hours prior to death.

The High Court upheld the Coroner’s decision not to leave a finding of neglect to the jury, on the basis that none of the individual failings was arguably gross.

The High Court also upheld the Coroner’s decision that Article 2 did not apply, on two bases: firstly that the medical failings did not trigger Article 2, and secondly neither did the fact that the deceased was subject to DoLS.

The High Court agreed that the medical failings in the case were not sufficient to amount to a systemic failing triggering Article 2 ((Parkinson) v Kent Senior Coroner [2018] EWHC 1501 (Admin) followed). The Court emphasised that the State’s positive obligations in relation to healthcare and medical treatment are regulatory – the State must put in place an effective framework that compels hospitals to adopt appropriate measures to protect patient’s lives.

The Court said that two principles emerge from the cases:

1. In the absence of systemic or regulatory dysfunction, Article 2 may be engaged if the State had assumed responsibility for the individual’s welfare/safety; and
2. In deciding whether the State has assumed responsibility for an individual’s safety, the Court will consider how close the State’s control over the individual was.

The High Court found that mental incapacity of a degree seen in this case and deprivation of liberty is insufficient on its own to trigger Article 2. The facts of this case did not fall within the “paradigm example” of state detention given by Lord Dyson in Rabone, where Article 2 will apply because the State has assumed control of a person’s welfare, to a high degree.

This case is important because it clarifies some ambiguity about whether neglect can be ‘cumulative’; it cannot.

The Court was keen to point out that an inability to make finding of neglect did not mean that there may not be grounds for claim of negligence in tort, which in part would be assisted by the full exploration of the facts which had taken place in this case. That full investigation was highlighted as a purpose of the inquest in the concluding paragraph of the judgment. However, that seems to miss the fact that the full exploration of facts only occurred in this case because the coroner initially found that Article 2 did apply, and did not review that decision until the conclusion of the evidence (in light of what was then the very recent ruling in Parkinson).

The skill for practitioners representing the family is in arguing that the issues for determination at the inquest include those which fell within the scope of this case on an Article 2 basis, so that the full facts are considered. The reverse of course applies to those representing Trusts/public authorities.

Anna Midgley