Maguire Revisited: Supreme Court hears Article 2 ECHR case

The Supreme Court has this week heard the appeal in the case of R (on the application of Maguire) v His Majesty’s Senior Coroner for Blackpool & Fylde and another.

The case concerns whether or not the state’s Article 2 obligation under the European Convention on Human Rights was engaged where a disabled woman who was deprived of her liberty died and, as a consequence of that engagement, whether an Article 2 jury inquest was required to make findings regarding the circumstances by which her death occurred.

Background

Ms Maguire (‘the Deceased’) lived in a residential placement for adults with learning difficulties. She was deprived of her liberty pursuant to a Standard Authorisation made under the Mental Capacity Act 2005.

In the weeks before her death, Ms Maguire had been unwell. The evening before her death she lost consciousness and collapsed. An ambulance had attended but left after Ms Maguire refused to attend hospital. A GP advised that she ought to attend hospital but, if she refused, could stay at home.

Ms Maguire subsequently collapsed again and was taken to hospital. She was found to be severely dehydrated and suffering an acute kidney injury. Ms Maguire suffered a cardiac arrest and died. A post-mortem recorded her cause of death as a perforated gastric ulcer and pneumonia.

First Instance Decision

Before the coroner, Ms Maguire’s family argued that the circumstances of her death necessitated an inquest that satisfied the procedural obligation under Article 2 (i.e., a conclusion that determined the circumstances of how she came by her death as well as who, where, when and how she died). Despite initially agreeing, upon hearing evidence, the coroner decided 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 under Article 2 did not apply. The coroner therefore determined that the jury should reach conclusions only upon the questions of who died, when, where and how. 

The Appeals

Ms Maguire’s family sought judicial review of this decision. The Divisional Court dismissed the claim for judicial review.

That decision was then itself appealed the following grounds: 

1. In accordance with the reasoning in Rabone v Pennine Health Care NHS Trust, the circumstances of Jackie’s care meant that the procedural obligation under Article 2 applied; 
2. The Divisional Court had been wrong to find that the medical care given to Jackie did not evidence systemic failures; and 
3. 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. 

The Court of Appeal heard and dismissed all three grounds of the appeal. It held: 

• Only very exceptional circumstances of medical negligence could give rise to a breach of the operational duty under Article 2.  In cases of deaths that give rise to or arise from allegations of medical negligence the issue of key importance when considering the applicability of Article 2 is the distinction between systemic failure and ordinary negligence.
• A person being in the care of the state does not necessarily trigger the statutory duty to undertake an Article 2 inquest. Instead, the scope of any operational duty should be considered, with a focus on what the state’s duties were in order to identify whether the operational duty under Article 2 was engaged.
• Ms Maguire’s circumstances should not be considered to be analogous to those of a psychiatric patient detained in hospital to guard against the risk of suicide. She was provided with accommodation because she was unable to live independently or with her family, but if medical treatment was required by Ms Maguire, it would have been provided in the usual way through the NHS. Her circumstances did not, therefore, differ to if she had lived with her family with input from social services. 
• Any breach of duty had to be linked to the state’s responsibility. As in the circumstances of a prisoner dying of natural causes where the operational duty was not breached (which would therefore not give rise to an obligation to conduct an Article 2 inquest) there was also no such duty where a vulnerable adult in the care of the state passed away, even if criticisms could be raised about the provision of medical care.
• Article 2 had an impact upon the conclusion of an investigation, but not the content. Article 2 should not impact upon the inquiry undertaken and evidence called. Where Article 2 was engaged, a conclusion could be judgmental, subject to any such conclusion not breaching the prohibition against it expressing a view on criminal or civil liability.

Ms Maguire’s mother appeals to the Supreme Court against the dismissal of her appeal by the Court of Appeal.

Discussion

Pursuant to the procedural obligation under Article 2, a state is required to start an investigation into a death for which it may bear responsibility. In considering the question ‘how’ a person came about their death, the circumstances in which the deceased died must also be considered (section 5(2) Coroners and Justice Act 2009, R v HM Coroner for the Western District of Somerset ex parte Middleton [2004] AC 182). 

Domestic and European courts have repeatedly addressed the debate about when the duty is triggered in cases of medical negligence. In recent years, the guidance provided by Strasbourg (Lopes de Sousa Fernandez v Portugal (2018) 66 EHRR 28, Fernandez de Oliveira v Portugal (2019) 69 EHRR 8) has further clarified the relevant issues and emphasised the need for the acts or omissions of health care providers to go beyond simple error or medical negligence. Nonetheless, (other than cases involving self-inflicted deaths) there is a lack of case law that addresses how a state’s Article 2 obligations become relevant in the context of negligent medical treatment provided to adults in the care of the state. 

What was and remains clear is that it is a difficult task to identify which medical deaths give rise to Article 2 obligations.

It is hoped that the Supreme Court’s consideration of these issues, particularly in the context of the thorough Court of Appeal judgment (which provided a detailed overview of the key decisions in relation to these issues), will provide some much-welcomed guidance.

In the interim, the Court of Appeal judgment reminds us that the question of whether Article 2 is engaged involves the application of a high threshold and is an exercise that is fact specific.

It is therefore anticipated the Supreme Court’s judgment will be an important decision in which guidance will be provided in relation to the limited circumstances in which Article 2 may be engaged.

Judgment will be handed down at a later date.