Does a DoLS automatically engage Article 2 of the European Convention on Human Rights at inquest? Jessica Swift and Martin English examine the impact of a recent Divisional Court ruling.
R (on the application of Muriel Maguire) (Claimant) v HM Senior Coroner for Blackpool & Fylde (Defendant) & United Response, North West Ambulance Service, Blackpool Victoria Teaching Hospital, Dr Sharafaz Adam, Dr Susan Fairhead, Blackpool City Council, Care Quality Commission and Kenneth Maguire (Interested Parties) [2019, EWHC 1232 (Admin)].
On 15 May 2019 the High Court handed down judgment in judicial review proceedings that had been brought to challenge a coroner’s application of the law when he restated the decision of the High Court in R (Parkinson) v Kent Senior Coroner  EWHC 1501 (Admin),  4 WLR 106 regarding the engagement of Article 2 ECHR with regard to the death of a patient subject to a Deprivation of Liberty Safeguard (DoLS). The judicial review proceedings also sought to question the coroner’s application of the coronial test pertaining to ‘neglect’, purporting that the coroner erred in law by not leaving a neglect rider to the jury. In endorsing the coroner’s decision at the inquest, the High Court held that the coroner’s application of the law with regard to both the engagement of Article 2 and neglect was sound.
The original inquest proceedings, commencing on 20 June 2018, concerned the death of Jacqueline Maguire (Jackie) who resided at a care home in Lytham St Anne's and had done so for many years. The home provided accommodation for people with learning difficulties who required personal care, it was not a nursing home and staff were not medically or nurse trained. Like many other residents, Jackie had been deprived of her liberty under the Mental Capacity Act 2005 to the extent that she was prevented from leaving the home without supervision and the doors of the home were kept locked at all times. On this basis, Jackie was subject to a DoLS, on a one year standard authorisation.
In the week prior to her death, Jackie had become increasingly unwell. On 21 February 2017 calls were made by her carers to her GP and NHS 111service for advice. After a second call to NHS 111 an ambulance was sent to the care home to conduct a review. Following this review, the crew intimated that they wished Jackie to attend hospital but following a direct refusal to go with them the crew formed the view (with which staff at the care home concurred) that it would have been disproportionate to use physical force in accordance with the Mental Capacity Act and an out of hours GP was contacted. The out of hours GP concurred that it would be inappropriate to use physical force and recommended that Jackie be watched overnight and taken to see her GP in the morning. On the morning of 22 February, Jackie’s condition had deteriorated further and a second ambulance called for her. On their arrival they were able to transport Jackie to the nearest hospital where she subsequently died later that day from a perforated gastric ulcer with peritonitis and pneumonia.
Judicial review proceedings
Judicial review proceedings were held on 1 and 2 April and as already indicated, the grounds for judicial review on behalf of the claimant were twofold.
Within their judgment the High Court observed that, in accordance with Parkinson, where a state has made provision for securing high professional standards among health professionals and for the protection of the lives of patients, matters such as errors of professional judgment or negligent coordination among health professionals will not be sufficient to engage Article 2.
The High Court also observed that the positive duty under Article 2 will not always be engaged by virtue of the “paradigm example” of detention, namely, where the state has detained an individual, whether in prison, a psychiatric hospital, an immigration detention centre or otherwise (Rabone v Pennine Care NHS Trust  UKSC 2). In particular, death by natural causes will not engage Article 2 in the absence of any reason to believe that the state failed to protect the life of the individual in question (R (Tyrrell) v HM Senior Coroner County Durham and Darlington and Ministry of Justice  EWHC 1892 (Admin)). Furthermore in the absence of either systemic dysfunction arising from a regulatory failure or a relevant assumption of responsibility in a particular case, the state will not be held accountable under Article 2.
Within their judgment, the High Court held that whilst there were individual failings by those involved in Jackie’s care they were not capable of demonstrating systemic failure or dysfunction. Further, as to the responsibility which the state assumed, the High Court held that whilst Jackie was a vulnerable person for whom the state provided care, a person who lacks capacity to make certain decisions about his or her best interests, and is therefore subject to a DoLS, does not automatically fall to be treated in the same way as an individual who the state has detained in prison for example.
It was the High Court’s view that where the state has assumed some degree of responsibility for the welfare of an individual who is subject to a DoLS but not imprisoned or placed in detention, the line between state responsibility (for which it should be called to account) and individual actions will sometimes be a fine one. However, it was the function of the coroner to draw that line and on the evidence before the coroner; it was open to him to conclude that this was a medical case and that a jury could not safely find that Jackie died as a result of any actions or omissions for which the state would be responsible. The High Court held that in that regard, the coroner had considered the relevant issues and reached a conclusion that was open to him.
Within their judgment the approach taken by the coroner to the evidence at the inquest could not be faulted with respect to the application of neglect either. The High Court held that he had considered all the relevant evidence that may point to neglect as individual acts as well as considering the potential for the cumulative effect of each of the individual acts. As part of his ruling on this issue the coroner had summarised the competing submissions before him, and having done so, concluded that there was no individual failing that could safely be said to be gross; the High Court concurred with the coroner’s approach that the evidence did not lead to a finding of neglect.
Conclusions and implications
The importance of the High Court judgment in this case is twofold. Firstly it fully endorses the views handed down by the High Court in Parkinson as regards ‘systemic failures’ and the important distinction that must be drawn between failures of that nature and those which are quite clearly individual; the latter offering no basis for the engagement of Article 2.
Second and in many ways linked to the above, this judgment also offers a clear explanation as to the High Court’s view with regard to detention and the effect this has on the automatic engagement of Article 2. The High Court has clearly drawn a line between those individuals who find themselves detained in prison for example, versus those who come to be detained by virtue of a DoLS; the focus in the latter types of cases being the presence of systemic dysfunction, which if absent is unlikely to trigger the engagement of Article 2.
This judgment will therefore be an important weapon in the armoury of inquest lawyers when considering the potential legal submissions open to them with respect to the engagement of Article 2 where a patient is under a degree of state control by virtue of a DoLS, or any other similar mechanism of state control, that does not fall within the court’s ‘paradigm example’ of state detention.