Alex Frodsham is an experienced inquest advocate, and is a member of the Oriel Chambers Inquests and Inquiries team. He sits as an Assistant Coroner for Cheshire, and has recently been appointed as an Assistant Coroner for Greater Manchester West.
Here, Alex provides an analysis of the Supreme Court’s recent decision concerning the applicability of Article 2 ECHR at inquests into deaths which have occurred in the care home/healthcare setting.
On 21st June 2023, in the case of R. (on the application of Maguire) v. HM Senior Coroner for Blackpool & Fylde and another [2023] UKSC 20, the Supreme Court unanimously dismissed Mrs. Maguire’s appeal against the Court of Appeal’s judgment by which the decision of HM Coroner was upheld, and provided clarity in what has become a complex area of Coronial law.
Mrs. Maguire’s daughter, Jackie, had been living within a care home as a vulnerable adult pursuant to schedule A1 of the Mental Capacity Act 2005, and subject to DoLS: Jackie was not permitted to leave the care home unsupervised, depriving her of her liberty. The medical evidence was complex and is not fully set out below, for brevity. In summary, on 21st February 2017 Jackie fell ill, and medical advice was sought from an out-of-hours GP; care home staff (who were not medically trained) called an ambulance, but Jackie refused to be taken to hospital. At that stage, erroneously, it was not thought that she was displaying any red flags which would have indicated that her life was at risk. By the following morning, her condition had worsened; Jackie again declined a hospital admission but, having concluded that she lacked capacity, the paramedics decided that it was in her best interests to use light physical restraint to convey her to hospital. Unfortunately, by this stage her condition (1a. perforated gastric ulcer with peritonitis and 1b. pneumonia) was untreatable and, very sadly, she died later that day.
The legal issue in the case was whether Article 2 of the ECHR was engaged: Article 2 concerns the right to life. Where Article 2 is engaged within the Coronial jurisdiction, a wider investigation into how the person came by their death is required (so that there is inquiry not only into the means by which the person came by their death, but also the circumstances in which the person came by their death), referred to within the judgment as an “expanded verdict”. This wider investigative scope (which permits a judgmental conclusion of a factual nature) has clear and obvious implications when Coroners are investigating deaths within the care home and healthcare settings, hence the significance of this decision which follows earlier decisions in what has been a developing area of law (see, for example, Rabone v. Pennine Care NHS Foundation Trust [2012] UKSC 2, and R. (on the application of Morahan) v. HM Assistant Coroner for West London [2022] EWCA Civ 1410). It is important to emphasise, however, that the Coronial jurisdiction is above all investigative and inquisitorial, and that section 10(2) of the Coroners and Justice Act 2009 (“the Act”) forbids any determination of civil or criminal liability.
Having heard very detailed evidence, the Coroner at first instance ultimately decided that Article 2 ECHR did not require the jury to be directed to return an “expanded verdict” pursuant to section 5(2) of the Act: the matters to be ascertained were limited to those set out at section 5(1) of the Act (those matter being who the deceased was; how, when and where the deceased came by their death; and the particulars required for registration of the death). Accordingly, the jury returned a short-form natural causes conclusion.
In the judgment, the Supreme Court provided a very clear explanation of where we are in Article 2 jurisprudence, and set out a very clear application of those legal principles to the facts of the case.
Article 2 explained:-
This jurisprudence has its roots in the ECHR case of Osman v. United Kingdom (1998) 29 EHRR 245. It is a wide topic in itself, nuanced and complex. Put simply, there is a tiered duty upon the State to protect the life of its citizens; this is particularly so if the deceased was in state detention, or if they had been deprived of their liberty in some way. The tiered duties are systemic, operational (collectively labelled “the substantive duties”) and investigative (labelled “the procedural duty”).
A state is required: (a) to have systems in place to protect life; (b) to take operational steps to protect the life of a person when it knows, or ought reasonably to know, that there is a real and immediate threat to that person’s life; and (c) to investigate any potential breach of the substantive duties, and to call state authorities to account. It is by means of an enhanced investigation at inquest that the UK discharges its procedural duties where Article 2 ECHR is engaged (“the enhanced procedural investigation”); or, where there is no relevant compelling reason giving rise to the enhanced procedural investigation, it is by means of a section 5(1) inquest and the availability of compensation for negligence that the UK discharges its obligations (“the redress procedural obligation”).
Mrs. Maguire had argued that HM Coroner’s decision to direct the jury to return a short-form conclusion was wrong in law, as Article 2’s substantive duties were engaged in the particular circumstances of Jackie’s case: she was deprived of her liberty (in the care of the State in the care home), she was vulnerable because of her difficulties in communicating and her lack of capacity to make judgments about her own health, and the care home had assumed responsibility to keep her safe and secure and to ensure that she had timely access to healthcare services. It was argued that a protocol should have been in place for admitting Jackie to hospital despite her refusal.
The Supreme Court’s decision:-
Unanimously, the Supreme Court held that there was no arguable breach of the systems duty, nor of the operational duty, by the care home or other healthcare providers. The care home had been subject to inspections by the CQC who had been satisfied with the systems in place and the standard of care provided there.
The Court reviewed the Strasbourg jurisprudence in which it had been held that, in the healthcare environment, the systems duty “operates at a high level”, and only in rare cases will the systems duty be found to have been breached. The Court drew a distinction between an individual (such as Jackie) who is placed in a care home and deprived of their liberty for their own benefit, and an individual who is incarcerated or detained as a prisoner (where, in the case of the latter, there is a heavy onus on the state to account where a death occurs). The Court held that the proper approach to the systems duty is to look forward, and to assess the systems which it is generally reasonable to expect the relevant body to have in place in advance of any particular incident. The systems in place at the care home were capable of being operated in a way which would ensure that a proper standard of care was provided to residents, even though there may have been lapses by individuals in executing the systems. Individual lapses were to be distinguished from a deficiency in the system itself. The Supreme Court upheld the Coroner’s finding that there was no arguable breach of the systems duty.
In considering the operational duty, the Supreme Court held that when an individual is being looked after in a healthcare setting, the state does not assume responsibility for all aspects of their physical health; therefore, the focus is on the specific risks to health of which the authorities are aware, and which they have a special responsibility to protect against. The circumstances of each case must be considered, and the operational duty applies in a graduated way, depending on the perception of the risk, based on reasonable assessment and taking reasonable steps accordingly. None of the care home staff involved in Jackie’s care were on notice that Jackie's life was in danger and, in seeking medical advice, they did what they were required to do as her carers. On the facts, the Supreme Court concluded that there was no arguable breach of the operational duty by the care home (nor by any of the clinical healthcare providers either).
In the absence of any proven breach of the systems duty, or the operational duty, there was no enhanced procedural duty (the latter being parasitic upon the former), and therefore the Coroner was correct in deciding that there was no requirement for an “expanded verdict” (or what should, since the Coroners and Justice Act 2009 came into force, have been more properly termed an “expanded conclusion”). The statutory questions to be answered were those set out at section 5(1) of the Act:
Who? How? When? Where?
