Article 2: right to life in a state-funded care home?

On 10 June 2020, the Court of Appeal handed down its judgment on the case of Maguire v Her Majesty’s Senior Coroner for Blackpool and Fylde and ors. This landmark judgment considered the engagement of Article 2 of the European Convention on Human Rights (ECHR) in the context of inquests relating to vulnerable adults who lack capacity living in state-funded care homes.

The facts:

The deceased, known as Jackie, had learning disabilities, behavioural difficulties and some physical limitations. She lived in a care home supervised and funded by the local authority which provided accommodation and care for vulnerable adults, like Jackie, who lacked capacity to make decisions about their living arrangements and welfare. Jackie was subject to Deprivation of Liberty Safeguards (DoLS) and had a history of objecting to medical treatment.

Jackie died in hospital on 22 February 2017. The cause of death was 1) perforated gastric ulcer and peritonitis and 2) pneumonia. A number of failures by care staff and medical professionals were identified and investigated during the inquest. Jackie’s family were critical of actions taken during the 48 hours prior to her death including:

  1. the GP’s decision to triage Jackie by telephone instead of attending in person
  2. a failure by an NHS call handler to relay a full account of Jackie’s history to the paramedics and
  3. the absence of a care plan to address Jackie’s refusal to attend the hospital.

Article 2

Article 2 of the ECHR provides that everyone’s right to life shall be protected by law. It places a duty on the authorities to take appropriate steps to safeguard the life of those within its jurisdiction who it is known are subject to real and immediate risk to life. This includes protecting those in detention (prisoners and psychiatric patients) who are at risk of suicide or need life-saving medical treatment.

The inquest

The coroner initially took the view that Article 2 was engaged but revisited this decision in light of the recent case of R (Parkinson) v Kent Senior Coroner [2018]. Parkinson is now the leading authority that deaths in healthcare settings involving deficiencies in care are outside the scope of Article 2 unless there are ‘very exceptional circumstances’. The coroner directed the jury that the failures of the professionals amounted to individual negligence, not systemic failure and although Jackie was in a state-funded care home this did not automatically mean the state assumed responsibility. The jury returned a conclusion of natural causes.

Judicial review

The family applied to the Divisional Court for a judicial review of the coroner’s decision that Article 2 ECHR was not engaged. The court found no fault with the approach taken by the coroner but stated that ‘where the state has assumed some degree of responsibility for the welfare of an individual who is subject to DoLS but not imprisoned or placed in detention, the line between state responsibility (for which it should be called into account) and individual actions will sometimes be a fine one’ making it clear that each case involving vulnerable adults under DoLS will need to be considered on its own facts.

Court of Appeal

The family appealed on two main grounds; first that due to her particular vulnerability and the circumstances of her care, the state had a duty to Jackie under article 2 and second, that there were systemic failures in her care, particularly around the lack of a care plan setting out what to do if she refused necessary medical treatment.

The Court of Appeal found that the Article 2 duty to protect Jackie’s life did not apply in this case. The court also made it clear that the presence of DoLS  does not automatically mean the state assumes responsibility and reaffirmed the Divisional Court decision that each case will turn on its own facts with, amongst other issues, the degree of control being investigated.

Critically, the court did not accept that this was a case where ‘systemic or structural dysfunction’ in medical services arose. The ‘very exceptional circumstances’ did not apply and the appeal was dismissed.

What this means for you

While the presence of DoLS will not automatically engage Article 2, a coroner will look at the circumstances of a particular individual’s vulnerability. This stresses the importance of ensuring care plans and policies are complete and regularly reviewed, capacity assessments are up to date and documentation is updated regularly and communicated to the care home workers. A coroner will also be interested in any policies or procedures concerning accessing medical treatment for vulnerable residents.

It is clear that the threshold remains high for Article 2 to apply to a ‘medical’ case where there are (even multiple) negligent acts by professionals. That said, where there are genuine systemic failures, Article 2 may apply, particularly where ‘the state was aware of the shortcomings, through regulatory inspections, and did not act on them.’ The importance of state-funded care homes complying with recommendations made by the Care Quality Commission (CQC) cannot be overstated. A thorough coronial investigation will almost certainly involve a detailed analysis of CQC reports.

Coronial investigations are likely to be the first opportunity for the ‘systemic failure’ issue to be scrutinised in Covid-19 deaths. Such inquests will undoubtedly be high-profile and widely reported. This case will almost certainly be in the forefront of the mind of any coroner investigating Covid-19 deaths contracted in a state-run care home or where individuals were discharged from hospital to care homes with suspected or confirmed Covid-19 cases. In addition to requests for Covid-specific risk assessments and policies, a coroner will be interested in whether the state were aware of the conditions in the home (including access to PPE) and if so, how they responded.

Written by Clare Woodland at BLM

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