Judge: High Court (Divisional Court (Irwin LJ, Farbey J and HHJ Lucraft QC))
Citation:  EWHC 1401 (Ch)
This was a judicial review brought in respect of the decision of the coroner investigating the death of a 52 year old woman, Jacqueline (Jackie) Morgan that Article 2 ECHR was not engaged. Ms Morgan had a diagnosis of Down’s syndrome and moderate learning difficulties. She required one-to-one support and had severely compromised cognitive and communication abilities. By the time of her death, she suffered limited mobility, needing a wheelchair to move around outside. She had lived for more than 20 years in a care home in Blackpool where she was deprived of her liberty pursuant to a standard authorisation.
In the week prior to her death, Ms Morgan had complained of a sore throat and had a limited appetite. For about two days before she died, she had suffered from a raised temperature, diarrhoea and vomiting. On 20 February 2017, Ms Morgan asked to see a GP. Staff at the care home did not act on that request. There then followed a chain of events which included a failure on the part of a GP to respond to calls and make a home visit; a further failure on the part of the out of hours GP to triage Ms Morgan properly or to elicit a full history from carers; and poor advice being given to the carers from NHS111. In fact the first medically trained personnel to attend Ms Morgan were an ambulance crew after 8pm on the 21 February 2017, however they had not been notified that Ms Morgan had Down’s syndrome and they found themselves unable to take her to hospital as she simply refused to go.
Ms Morgan therefore remained at the care home overnight. She was found collapsed the following day. She was admitted to hospital by ambulance and died that evening. A post-mortem examination concluded that her death was as a result of a perforated gastric ulcer with peritonitis and pneumonia.
The coroner at a Pre Inquest Hearing determined that Article 2 ECHR was engaged and therefore conducted the inquest on this basis. However, at the conclusion of the evidence, the coroner reconsidered the position in light of the decision of R (Parkinson) v Kent Senior Coroner  EWHC 1501 (Admin) which had been handed down shortly before the hearing had begun. Relying on this decision, the Coroner ruled that the allegations against Ms Morgan’s carers and healthcare providers amounted to allegations of individual negligence, which Parkinson had clarified as falling outside the state’s obligations under article 2.
The application for judicial review contended that the Coroner was wrong to conclude that Article 2 did not apply. It was argued that the law had developed so that the court should now recognise the state’s positive obligations under article 2 towards those who may be described as “particularly vulnerable persons under the care of the state”. Alternatively, the Coroner ought to have concluded that there was sufficient evidence of systemic problems in events leading to Jackie’s death that article 2 ought to have been left to the jury. There had been no effective communication system between those authorities charged with protecting Jackie (GP services, NHS111, the ambulance service and the hospital) and no individual with oversight of Jackie’s healthcare who could convey an accurate account of her symptoms in circumstances where she was unable to do so. These were regulatory and structural failures. Together with the failure to sedate Jackie on the evening of 21 February, they were capable of amounting to systemic dysfunction.
The second ground of challenge was that the Coroner had erred in law in failing to leave neglect to the jury.
The Divisional Court held as follows on the law:
First, in the absence of systemic or regulatory dysfunction, article 2 may be engaged by an individual’s death if the state had assumed responsibility for the individual’s welfare or safety. […]
Secondly, in deciding whether the state has assumed responsibility for an individual’s safety, the court will consider how close was the state’s control over the individual. Lord Dyson observed in paragraph 22 of Rabone that the “paradigm example” of assumption of responsibility is where the state has detained an individual, whether in prison, in a psychiatric hospital, in an immigration detention centre or otherwise. In such circumstances, the degree of control is inevitably high. […]
That the case law has extended the positive duty beyond the criminal justice context in Osman is not in doubt. The reach of the duty, beyond what Lord Dyson called the “paradigm example” of detention, is less easy to define. We have reached the conclusion, however, that the touchstone for state responsibility has remained constant: it is whether the circumstances of the case are such as to call a state to account: …… 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.
As to the responsibility which the state assumed here, Jackie was a vulnerable person for whom the state cared. In her written submissions, Ms Butler-Cole relied on the placement at the care home and the deprivation of liberty in respect of that placement. She emphasised the evidence about Jackie’s reliance on her carers and other professionals in relation to medical treatment and healthcare. However, in oral submissions, supplemented by a written Reply, she accepted that mental incapacity sufficient to justify deprivation of liberty under the Mental Capacity Act is insufficient on its own to trigger the engagement of article 2. This was an important and proper concession.
We agree that a person who lacks capacity to make certain decisions about his or her best interests – and who is therefore subject to DOLS under the 2005 Act – does not automatically fall to be treated in the same way as Lord Dyson’s paradigm example. In our judgment, each case will turn on its facts.
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 to account) and individual actions will sometimes be a fine one.
Applying this analysis to the facts of the case the court concluded that this was not a case in which there had been an assumption of responsibility on the part of the State; and the chain of events that led up to Ms Morgan’s death was not capable of demonstrating systemic failure or dysfunction. The Divisional Court found that such failings as there may have been were attributable to individual actions and so did not require the state to be called to account. The Divisional Court also found, on the facts, that Coroner had been entitled to find there was no individual failing on the part of those involved which could safely be said to be gross, so as to require him to leave a finding to the neglect.
The application was therefore refused.
This decision may be a surprising one for many. The conclusion that, despite a string of failures on the part of the state to summon basic medical attention for a woman in a totally dependent position due to both physical and mental disabilities, the State should not be called to account for purposes of Article 2 ECHR, may be a surprising one for many. Would it have made a difference if Ms Morgan had been compelled to live in the care home against her will? Must there be a degree of coercion on the part of the State before there is sufficient to found an assumption of responsibility by the State engaging Article 2? No doubt this will be tested in cases to come, and may even be tested further in this case if an appeal is forthcoming.
In relation to the fineness of the line between DoLS and state detention, we note that the Independent Review of the MHA 1983 observed in December 2018 that:
Following changes to the CJA introduced in 2017, someone who has died whilst subject to DoLS (or, in future, the Liberty Protection Safeguards103) is not considered to have been in state detention for purposes of determining that there should be an investigation by a coroner, which means there is no automatic investigation of their death by the coroner. In many cases, this is entirely appropriate, it is simply wrong to consider the natural death of an elderly person in a care home a death in state detention for these purposes simply because they were subject to a DoLS authorisation. But in the case of those in a psychiatric hospital subject to DoLS (or, in future the LPS), it may be far more appropriate to think of them as being in state detention. We are not recommending further amendments to the CJA, but we do think that it is important that all relevant guidance (including from the Chief Coroner, but also the Mental Health Act Code of Practice) make it clear that in these circumstances it should be presumed that the individual is in state detention for purposes of triggering the duty for an investigation by a coroner (page 101, footnotes omitted)