Article 2 ECHR revisited: In cases of medical negligence where an individual is in the care of the state when will a Middleton inquest be required?

Last week the Court of Appeal handed down its judgment in Maguire v Her Majesty’s Senior Coroner for Blackpool & Fylde and Others [2020] EWCA Civ 738. 

The background 

The case involved the death of Jacqueline Maguire (‘Jackie’), a vulnerable adult who suffered from Down’s Syndrome, learning disabilities and behavioural difficulties together with spinal problems and limited mobility. She was unable to care for herself and lacked capacity. She was resident in a care home and subject to a Deprivation of Liberty Safeguard. 

Jackie died in hospital in February 2017. She had suffered a perforated gastric ulcer, peritonitis and pneumonia. It was alleged that there had been significant failings in the medical care she had received. 

The appeal 

Before the coroner Jackie’s family argued that the circumstances of her death required an inquest which satisfied the procedural obligation under Article 2 (ie. a conclusion that determined the circumstances of how she came by her death as well as who, how, when and where she died). The Coroner initially agreed but re-visited his decision after hearing evidence concluding that the evidence did not suggest that Jackie’s death may have resulted from a violation of the state’s operational duty to protect life and the procedural duty did not apply. He thus limited the jury’s conclusion to findings as to who, how, when and where Jackie died. 

The Divisional Court dismissed the claim for judicial review. This was appealed on the grounds that: 

i)                    By parity of reasoning with Rabone v Pennine Health Care NHS Trust the circumstances of Jackie’s care meant that the procedural obligation under Article 2 applied; 

ii)                  The Divisional Court had been wrong to find that the medical care given to Jackie did not evidence systemic failures; and 

iii)                The Divisional Court had erred in failing to take into account the wider context of premature deaths of people with learning difficulties which were relevant to the application of Article 2 in the circumstances. 

The Court of Appeal dismissed the appeal on all three grounds. It indicated: 

• In cases of deaths involving allegations of medical negligence the distinction between systemic failure and ordinary negligence remains crucial to the question of whether the state’s Article 2 duty is triggered. It is only in very exceptional circumstances that cases of medical negligence can give rise to a breach of the operational duty under Article 2. 

• Just because someone is in the care of the state does not mean that the statutory duty to undertake an Article 2 inquest is triggered. It is necessary to consider the scope of any operational duty. The focus must be on what the state’s duties were in identifying whether the operational duty under Article 2 was engaged. 

• Jackie’s circumstances were not analogous with a psychiatric patient who was in hospital to guard against the risk of suicide. She had been accommodated in a home because she was unable to look after herself or live with her family. She was not there for medical treatment. If such treatment was required it was sought in the usual way, from the NHS. Her position was no different than it would have been if she had lived in her family’s care with social services involvement. 

• Any breach of duty must be linked to the responsibility of the state. So just as where a prisoner died of natural causes where there was no suggestion that the operational duty had been breached and thus no obligation to conduct an Article 2 inquest neither would such a duty arise in circumstances where a vulnerable adult in the care of the state passed away even if the medical intervention provided was lacking. 

• Article 2 regarded the product and not the content of the investigation. It should not impact on the inquiry undertaken and the evidence called.  However, in cases where Article 2 was engaged a conclusion could embody a judgmental conclusion (so long as it did not infringe the statutory prohibition against expressing a view on criminal or civil liability). 

Comment 

This is an important case. 

The procedural obligation under Article 2 requires the state to initiate an investigation into a death for which it may bear responsibility. Where it applies the question ‘how’ must also consider in what circumstances did the deceased die (section 5(2) Coroners and Justice Act 2009, R v HM Coroner for the Western District of Somerset ex parte Middleton [2004] AC 182). 

The debate about when the duty is triggered in the context of medical negligence has been repeatedly addressed in the domestic courts and in Europe. The guidance handed down by Strasbourg in recent years (Lopes de Sousa Fernandez v Portugal (2018) 66 EHRR 28, Fernandez de Oliveira v Portugal (2019) 69 EHRR 8) has provided further clarification on the issues at play and emphasised the need for the acts or omissions of health care providers to go beyond mere error or medical negligence. Yet (aside from self-inflicted deaths) there is a dearth of case law addressing how Article 2 obligations come into play where negligent medical treatment is rendered to adults in the care of the state. 

The judgment provides a very helpful overview of the key decisions of the domestic courts and the Strasbourg jurisprudence. It reminds us that the task of identifying which medical deaths trigger the positive obligations under Article 2 is not an easy one. 

It reiterates that it is only very exceptional circumstances that give rise to a breach of the operational duty under Article 2 and (as the Grand Chamber observed in Lopes de Sousa) ‘the dysfunction at issue must be objectively and genuinely identifiable as systemic or structural in order to be attributable to the state authorities, and must not merely compromise individual instances where something may have been dysfunctional in the sense of going wrong or functioning badly…the dysfunction at issue must have resulted from the failure of the state to meet its obligations to provide a regulatory framework in the broader sense indicated above.’ 

The decision reflects yet again the courts’ reluctance to depart from the limited circumstances in which Article 2 is engaged in cases of medical negligence.  It reminds us that the fact that an operational duty to protect life may exist does not lead to the inevitable conclusion that for all purposes the death of a person who is owed that duty is to be judged by Article 2 standards. The question is fact specific and the state’s Article 2 obligations are tailored to harms which the authorities have a responsibility to protect against.   

Further, it again highlights the need to keep the issue of Article 2 under review during the course of an investigation and reminds us that the issue of Article 2 concerns the conclusion rather than the content of the investigation. Article 2 impacts on the way in which the conclusion can be framed, but the scope of the investigation and the evidence called is unlikely to be significantly affected by the issue.