R (on the application of Maguire) v HM Senior Coroner for Blackpool & Fylde and another

In this post, Alex Carington considers the Supreme Court’s decision in an appeal by the family of the Deceased who sought to challenge the Coroner’s decision that Art. 2 of the Human Rights Act 1998 did not require an expanded conclusion having heard all of the evidence at the inquest such that the jury were requested to return a short form conclusion only. The appeal also raised issues about the boundary of the systems duty and operational duty (and the content of both) as well as the boundary between the enhanced procedural obligation on one hand and basic procedural obligation together with the redress procedural obligation on the other.

Executive summary

• The position adopted in Calvelli, Dodov, Fernandes, Oliveira and Morahan in terms of the substantive and procedural duties under Art. 2 in a healthcare context was endorsed.
• The guidance in Fernandes assists even where a person subject to a deprivation of liberty is receiving treatment.
• Establishing a systems duty breach in cases concerning healthcare or medical negligence would be exceptional.  Evidence from a domestic regulator that there had been no such breach or that their guidelines had been followed would be powerful evidence against such an allegation.
• In order to establish a breach of the operational Osman style duty in a healthcare/medical context, there would have to be an arguable case that the medical practitioners knew, or ought to have known, about a specific risk to the Deceased’s life.
• It is wrong to reverse engineer Art. 2 duties by formulating obligations based on what went wrong. The correct approach is to assess the system which would be generally reasonable to expect a relevant body to have in place ahead of the particular incident.
• The substantive duties under Art. 2 will be dependent on the facts of each case. In this instance, the care provided by the care home was akin to familial care. They were not medically trained and so their duty extended to ensuring medical care was obtained where appropriate. The care home staff would be entitled to rely on the judgment of the healthcare practitioners they consulted. The loss of liberty of the individual in a care home in their best interests  was distinct from an individual who had been incarcerated and this would be reflected in the Art. 2 duties owed.
• No criticism was made of the Coroner for undertaking an extensive investigation during the inquest with evidence from several lay witnesses and experts given the possibility of an Art. 2 breach. However, he was entitled at the end of that process to determine that Art. 2 was no longer engaged.
• The decision should not hinder a comprehensive investigation of the issues as long as they fall within the systems and operational duties framework in a healthcare context, as set out by the caselaw. However, the decision could be used to seek to narrow the scope of the inquest itself.

The Facts

The Deceased, Jackie, had Down’s Syndrome alongside learning disabilities, behavioural difficulties and some physical limitations. She was also diagnosed with a behavioural disorder. She had lived for many years in a care home managed by United Response which was registered with the Care Quality Commission (“CQC”) and subject to periodic inspections. The home provided 24/7 supervision and care but the staff had no medical or nursing training.

Due to her difficulties and lack of capacity, Jackie was not allowed to leave without supervision and a Standard Authorisation of a deprivation of liberty in her best interests was granted by the Blackpool Council pursuant to the Deprivation of Liberty Safeguards (“DoLS”). She was dependent on staff for her day-to-day care including access to her GP and other medical services. Jackie was also fearful of medical interventions and sought to avoid them.

In the months preceding her death, Jackie had suffered with stomach pain and there had been some failed investigations into this due to Jackie’s lack of co-operation. In the days prior to her death, Jackie was feeling unwell with a raised temperature and vomiting. Jackie asked to see a doctor on a couple of occasions which was not acted upon. In the afternoon of 21 February 2017, a support worker at the care home phoned a GP and NHS 111. Jackie’s GP then rang the care home and decided a home visit was not necessary. Later that evening, Jackie collapsed. NHS 111 was contacted and an ambulance was sent. The crew were not informed of Jackie’s Down’s Syndrome, other learning difficulties or details of her symptoms.

The paramedics decided they wanted to take Jackie to hospital; however, Jackie refused. The paramedics were concerned Jackie did not have capacity to decide but also thought using restraints to take her to hospital was disproportionate and they were not qualified to administer sedation. An out of hours GP was contacted and advised it would be best to monitor Jackie (she admitted at the inquest that her triage was poor and further questions would have led to her recommending immediate admission to hospital).

The decision was made for Jackie to remain at the care home and to be monitored (the frequency of which was unclear). On the morning of 22 February 2017, Jackie was acutely unwell and collapsed again. An ambulance was called but Jackie was still resisting attempts to take her to hospital. The decision was made to use light restraints.

Jackie arrived at the Blackpool Victoria Teaching Hospital at around 9 am and was treated for presumed sepsis. However, she died later that evening following cardiac arrest.

Coronial investigation and the Inquest

A post-mortem revealed a stomach ulcer which likely had developed over several months and had caused peritonitis. An emergency medicine consultant instructed by the Coroner gave the view that Jackie was on the sepsis pathway on 21 February 2017 (the day before her death) with a 30-40% chance of death which had increased to 70% by the time of her admission to hospital the following day.

There were two pre-inquest review hearings. Following the second hearing, and the judgment in Fernandes, the Coroner determined that Art. 2 was engaged due to an arguable breach by the care home, ambulance service, GPs or hospital (or a combination of them).

The Coroner held an inquest with a jury and heard evidence from 30 witnesses including care home staff, paramedics, GPs and other medical staff involved and NHS 111. There were also independent experts who provided reports.

In addition to the inquest, United Response conducted its own review, CQC conducted an investigation into the care home, an advanced paramedic conducted a review of the paramedic response and a Quality Assurance Lead carried out a review of the NHS 111 service.

At the conclusion of the Inquest, the Coroner invited further submissions on the engagement of Art. 2 and the form of conclusion that the jury should give. At that stage, the family did not seek to argue there had been a systems duty failure. The Coroner concluded that matters had been clarified such that Art. 2 was no longer engaged as the alleged breaches amounted to no more than medical negligence.

The jury were instructed to return a short Jamieson-style conclusion and they returned a conclusion of natural causes.

The Appeal

By way of judicial review, Jackie’s Mother challenged the Coroner’s decision, seeking a declaration that Art. 2 was engaged such that a Middleton-style conclusion was required and that the Coroner erred in withholding a neglect conclusion from the jury. She requested a new inquest be held.

The judicial review was dismissed by the Divisional Court and only the issue of Art. 2 engagement was appealed (so the question of including a neglect conclusion was not considered further).

The appeal to the Court of Appeal was on 3 grounds:

1. The Divisional Court erred in treating the case as a healthcare or medical negligence case within the Parkinson line of authorities such that an enhanced procedural obligation was not required. In oral submissions, this was expanded to include an arguable breach of an operational style duty derived from Osman.
2. Alternatively, even if Parkinson applied, the omission to have any mechanism for admitting Jackie into hospital on the evening of 21 February 2017 amounted to a systemic failure.
3. The Divisional Court failed to take into account the wider context of premature deaths of people with learning disabilities.

The Court of Appeal dismissed the appeal.

The appeal to the Supreme Court was then further revised with the Court permitting the Appellant to withdraw a previous concession so that she could argue the fact Jackie was deprived of her liberty in itself meant the relevant Art. 2 enhanced procedural obligation was owed in any event. The Supreme Court considered the issues arising from the Appeal under the following headings:

1. Was there an arguable breach of the systems duty on the part of the care home, so as to trigger an enhanced procedural obligation?
2. Was there an arguable breach of the systems duty on the part of any of the healthcare providers, so as to trigger that obligation?
3. Was there an arguable breach of the operational duty on the part of the care home, so as to trigger that obligation?
4. Was there an arguable breach of the operational duty on the part of any of the healthcare providers, so as to trigger that obligation?

Arguable breach of the systems duty on the part of the care home

The Supreme Court rejected the argument that an enhanced procedural obligation arose by reason of an arguable breach of the systems duty by the care home:

• The Coroner heard substantial evidence about the systems in place at the care home including from the CQC who had a regulatory role in relation to the care home. The Coroner was entitled to reach the conclusion he did on the evidence.
• The position in respect of care homes was essentially the same as the provision of healthcare services discussed in Powell and reiterated in Fernandes and Oliveira: where a state has made adequate provision for securing high professional standards among health professionals and the protection of lives of patients, matters such as an error of judgment on the part of a health professional or negligent coordination of among health professions in the treatment of a patient would not alone amount to an Art. 2 breach. There would need to be a risk to life through a denial of the healthcare which the state had undertaken to make available to the population generally. It would only be exceptional circumstances where the substantive systems responsibility of the state under Art. 2 would be breached. Thus, the systems duty in this area operates at a high level and is easily satisfied. Here the state had a regulatory regime monitored and enforced by the CQC as a domestic regulator.
• The system was capable of being operated in a way to provide suitable care. Individual lapses were not to be confused with a deficient system.
• There was no good reason for treating the provision of care in a care home differently to care in a hospital or other healthcare environment:
  • Fernandes did not support the application of different principles to medical treatment of persons deprived of their liberty.
  • There is no bright-line boundary between persons who are in detention to receive treatment for mental health problems and voluntary patients receiving the same. As such, the guidance in Fernandes will be informative about the duty owed where there is a loss of liberty for the individual concerned. The distinction made in Fernandes pertained to cases where there was an arguable claim of denial of immediate emergency care, where medical staff breached their professional obligations by failing to provide medical treatment despite being fully aware that their life would be at risk if treatment was no given.
  • Persons such as Jackie placed in a care home were being provided with a substituted form of familial care and any deprivation of liberty was in their own interests.  A stronger analogy is to a situation where the state has authorised a loss of liberty at a family home in the interests of an individual. This loss of liberty is an incidental feature of the individual’s vulnerability and can be on a continuum. This is different to a prisoner subject to incarceration or detention by the police where there is a heavy onus on the state to account where a death occurs. Any Art. 2 duties should reflect this context.
• The CQC regulatory framework was supplemented by specific system in place at the care home which was in itself subject to checks by the CQC. This satisfied the requirements in Calvelli, Dodov, Fernandes and Oliveira.
• The Appellant’s case relied on reverse engineering, formulating obligations based on what went wrong. The correct approach is to assess the system which would be generally reasonable to expect the relevant body to have in place ahead of the particular incident. The view of the domestic regulator (here the CQC) was powerful evidence that the systems duty had been satisfied.
• The Appellant’s case as advanced would have significant implications on the resources needed to improve systems and it was not for the courts to consider how a state’s limited resources should be allocated between competing priorities.
• The lack of a protocol where a patient was that unwilling to receive medical treatment or attend hospital did not amount to a systems duty breach. It would be difficult to formulate a protocol which specified how an individual should be treated in every possible scenario. Further, it is clear from Oliveira that a system requiring the exercise of judgement by clinicians does not in itself make it deficient.
• In a case concerning potential medical negligence, the state’s redress procedural obligation under Art. 2 would normally be satisfied by the combination of the basic procedural obligation (e.g. holding a Jamieson style inquest) and the redress procedural obligation (i.e. the availability of a civil claim for damages).

Arguable breach of the systems duty on the part of the healthcare providers

The arguments and the analysis under this aspect of the appeal were considered to be closely similar to those advanced in relation to the care home. The approach in Powell, Cavelli and Fernandes was applicable to the provision of healthcare by trained personnel. Whilst some criticism could be made about some aspects of the GP’s conduct, as was explored during the inquest, this amounted to lapses in individual performance and not a systems duty failure.

Arguable breach of the operational duty on the part of the care home

The Appellant argued there was an arguable breach of the operational duty due to the combination of deprivation of liberty, vulnerability and an assumption of responsibility by the state for her care. The first two points were dealt with above under the arguable breach of the systems duty by the care home.

When considering the relevance of an assumption of duty, the question to address is “assumption of duty for what?”. Considering the Strasbourg Court decisions, the operational duty arises in well-defined circumstances. In terms of a care home, the assumption of responsibility does not extend to all aspects of their physical health. The operational duty is to take steps to avert a specific risk to life. The Court of Appeal were right to focus their analysis on the specific risks to Jackie’s health of which the authorities were aware. The enhanced procedural obligation will only arise if it can be show there was an arguable breach of the operational duty targeted on a specific risk to the Deceased’s life which was known or ought to have been known.

In the present case, the operational duty applied to the care home staff in a graduated way depending on their perception of risk to Jackie. They were aware she was a vulnerable person but they were not medically trained. Their responsibility was to look after Jackie as a substitution for her family. They have the task of ensuring Jackie could access healthcare which was available to the population generally, just in the same way that a family could secure access for a vulnerable member. This is what the care home sought to do. The care home staff were aware Jackie was experiencing significant health problems and they took appropriate steps to seek medical advice and call an ambulance. They were entitled to rely on the judgement of the doctors and paramedics. As such, there was no Art. 2 breach of the operational duty on the part of the care home to give rise to an enhanced procedural obligation.

Arguable breach of the operational duty on the part of any of the healthcare providers

The main issue here was whether there was a breach of the operational duty by not taking Jackie to hospital before the risk of death increased dramatically. When assessing whether an Osman-style operational duty arises it is necessary to take into account other countervailing factors relevant to her situation. The care home was to be an environment in which Jackie’s autonomy was permitted and she was to be treated with dignity and respect. She needed to have a good cooperative relationship with her carers which required trust. Jackie’s decisions and preferences needed to be given respect even if they were not binding. Healthcare professionals need to respect the autonomy of those in their care and an assessment is required if physical or chemical restraint is to be used in order to show its use is proportionate to the risk faced by the individual.

In this case, none of the healthcare professionals were aware that Jackie’s life was in danger such as to engage the operational duty. The case did not fall within the very exceptional circumstances referred to in Fernandes.

The Appellant sought to rely on reports which demonstrated that more might be done to protect the health of individuals with learning disabilities. However, the Court did not find these supportive of the Appellant’s case as it was not the proper role of the courts to determine such matters which may involve judgements regarding the allocation of scarce resources in the care and health care system.

Discussion

This is a lengthy judgment by the Supreme Court examining the nature of the duty under Art. 2 more generally as well as applying them to the specific facts of this case. As such, this can be considered a seminal judgement for practitioners conducting inquests. A helpful summary of the issues and where they are discussed is at para 7 of the judgment.

Nature of obligations under Art. 2

The Court helpfully summarises out the obligations under Art. 2 as follows:

• A negative duty to refrain from taking life, save in the exceptional circumstances as set out in Art. 2.
• Positive substantive obligations on the state to take steps to protect life typically separated into two types:
• an obligation to have appropriate legal regimes and administrative systems in place to provide general protection for the lives of citizens and persons in its statutory tree (“systems duty”)
• an obligation to take operational steps to protect specific persons when the state is on notice that they are subject to a risk of life (“operational duty”)
• Positive procedural obligations regarding the investigation of, and the opportunity to call, state authorities to account for potential breaches of their substantive obligations under Art. 2.

Procedural obligation under Art. 2

The Court interprets the procedural obligation as being 3 levels of graduated procedural obligation:

1. A basic procedural obligation to establish whether a death is from natural causes as opposed to, say, violence. This will inform whether any further procedural obligations apply.
2. An enhanced procedural obligation in some contexts where further investigations may be required to investigate possible substantive breaches and to ensure accountability, redress and, where appropriate, punishment. This enhanced obligation applies where there is a compelling reason why the state should be required to account for how someone came by their death (e.g. a person in state detention).
3. A redress procedural obligation where there is no foundation for an enhanced procedural obligation but which requires a means for a complaint of any breaches to be investigated and allow redress.

Enhanced procedural obligation

The enhanced procedural obligation can arise automatically in certain categories of cases where there is sufficient possibility of state responsibility to require an enhanced investigation, for example, the use of lethal force or suspicious/violent deaths in custody.

The enhanced procedural obligation can also apply where there has been an arguable breach of the state’s substantive positive obligations under their systems or operational duty. In those cases it will be necessary to consider the scope and existence of any such duty in order to determine whether there has been an arguable breach such that an enhanced investigation is required.

Under an enhanced investigation for the purposes of an inquest, the investigation will need to be expanded to a Middleton-style conclusion pursuant to 5(2) of the Coroners and Justice Act 2009.

Systems duty in a healthcare context

This judgment affirms the position as reiterated in Fernandes and as such it will only be in exceptional circumstances that a breach of the systems duty in a healthcare context will be established.

Where there is a domestic regulator, such as the CQC in this instance, their view that the framework has been followed will be powerful evidence that the systems duty has been satisfied. It will be an uphill battle to persuade a Coroner that there has been a systems duty breach if it is not supported by the view of the domestic regulator.

In terms of a care home looking after a vulnerable individual lacking capacity and subject to a loss of liberty in their best interests, the Court is likely to consider the position more akin to a person cared for in similar circumstances at home than a prisoner or involuntary mental health patient at risk of suicide.

The Court makes it clear there is no distinct dividing line and each case will be need to be considered on its individual facts.

Operational (“Osman”-style) duty in a healthcare context

The operational duty arises where there is an assumption of responsibility by the state and the state is aware, or ought to be aware, of a specific risk to life.

When considering if the duty arises due to an assumption of responsibility, the relevant question to ask is “responsibility for what?”. In this instance, the care home staff were responsible for caring for Jackie as a substitution for her family. They were not medically trained and their duty extended to taking appropriate steps to seek medical advice. In any case, it will be imperative to consider what the relevant staff were doing to determine what they had assumed responsibility for.

In a healthcare context, the operational duty will only arise where it can be demonstrated that there was a specific risk to life which was known or ought to have been known by the healthcare or care providers. In this instance, the care home staff, who were not medically trained, were entitled to rely on the judgement of medical practitioners.

Equally, in this instance none of the healthcare providers were aware, or ought to have been aware, that there was a risk to Jackie’s life despite her being unwell and so the operational duty did not arise. This is somewhat surprising given the concession by one of the GPs that, had she undertaken an appropriate triage, she would have recommended an immediate admission to hospital, but it may be the Supreme Court considered that the Coroner was entitled to reach this view on the totality of the evidence.

Impact of the judgment on the scope of the Inquest

This appeal focused on the decision of the Coroner at the end of the Inquest that Art. 2 was not engaged so that the Jury were instructed to return only a short form Jamieson-style conclusion. The Coroner had heard extensive lay and witness evidence before reaching the view that Art. 2 was not engaged.

This decision should not necessarily impact the ability for Interested Persons, in particular the family, to request a coroner to conduct a similar extensive investigation to properly understand whether or not there have been any arguable breaches of Art. 2. However, no doubt Interested Parties may use the decision to seek to narrow the scope from the outset. The family could still argue that the Coroner can only be satisfied there are no substantive breaches by undertaking a thorough investigation; however, it will be advisable for practitioners to carefully identify and frame such allegations within the systems and operations duties framework as outlined in this case. It will likely be difficult to persuade a coroner to investigate an arguable systems breach if there has been a comprehensive investigation by a domestic regulator which reveals no such concerns.

If a coroner is prepared to consider the possibility of investigating an Art. 2 breach, as the Coroner was in the present case (for which no criticism was made), this should assist with a family seeking legal aid funding for the inquest even if the coroner ultimately concludes Art. 2 is not engaged at the end of the process.

The evidence obtained through the inquest process will remain valuable to the Interested Parties to understand the likely nature and strength of any subsequent civil litigation.

The possibility of civil law remedies to satisfy the state’s redress procedural obligation

The Court clarified that the procedural investigative obligation under Art. 2 in a case concerning potential medical negligence could be satisfied by the combination of the basic procedural obligation (e.g. holding a Jamieson-style inquest) and the redress procedural obligation (i.e. the availability of a civil claim for damages). Presumably, if there was no adequate means of redress for the complainant, there may be a basis for a claim for a breach of the redress procedural obligation.

Role of the Coroner in judicial review proceedings

The Coroner adopted a neutral approach in the present proceedings in line with previous case law. However, the Supreme Court found this approach posed difficulties in appeal ssuch as this one.

The Court suggested the Advocate for the Coroner, whilst remaining neutral, should act as an Advocate for the Court to ensure the Court has a full factual picture (including matters not emphasised or omitted by the Claimant) and to alert it to relevant case law and authorities (paras 116-117).

It is not entirely clear from the judgment exactly when such an approach should be adopted; however, it would seem a sensible approach to adopt in judicial review proceedings where there is a question about the scope and engagement of Art. 2, especially as the Coroner’s Advocate will continue to remain neutral but will help ensure that the Court is aware of the all of the relevant facts and law.

I finish this blog expressing some surprise that the Supreme Court consistently referred to the inquest “verdict” throughout their judgment despite it being changed to a “conclusion” since the inception of the Coroners and Justice Act 2009.