R (Maguire) v His Majesty's Senior Coroner for Blackpool & Fylde and another
Summary
Jackie Maguire lacked capacity to make relevant decisions and was subject to a standard DoLS authorisation in a care home. Weeks before her death, she began to experience symptoms of a sore throat, diarrhoea, vomiting, and a raised temperature. On 21 February 2017 her symptoms worsened, and she suffered a fit. Care home staff called an ambulance but she refused to go to hospital. Paramedics obtained out-of-hours advice from a GP who advised that, while it was desirable for her to attend hospital, her condition was not so serious that they should override her wishes and force her to go. The following morning she collapsed again. Paramedics used light physical restraint and took her to hospital in her best interests where, shortly after admission, she suffered a fatal cardiac arrest. A post-mortem revealed a perforated stomach ulcer resulting in peritonitis.
The central issue was whether Article 2 ECHR required an “expanded” or standard conclusion for the purposes of s.5(2) Coroners and Justice Act 2009. The standard version would be confined to how, when and where she died whereas an expanded conclusion involves a commentary about the circumstances in which Jackie came by her death. This is required where the enhanced procedural obligation applies.
The Supreme Court noted that there are three types of positive procedural obligations:
- Basic: to check whether there might be any question of a potential breach of a person's right to life under Article 2, State authorities should take some steps to establish whether the cause of death is from natural causes.
- Enhanced: in particular contexts, a State may be required to take further steps to investigate possible breaches of the Article 2 substantive obligations to ensure appropriate accountability and redress and, as appropriate, to punish persons responsible for the death.
- Redress: in certain other cases where there is no relevant compelling reason giving rise to an enhanced procedural obligation, but there is still a possibility that the substantive obligations in Article 2 have been breached, there is an obligation to provide means by which a person complaining of such possible breaches can make that complaint, have it investigated or obtain redress.
Article 2 provides two types of positive substantive obligations which, on the facts of this particular case, resulted in the following conclusions (the numbers in square brackets being references to numbers in the judgment).
1. The systems duty: to have appropriate legal regimes and administrative systems in place to provide general protection for the lives of citizens and persons in its territory. In a healthcare context, only rarely will this be breached: [145]; the same is true in a care home context: [147]. In this case, 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 individual lapses in putting them into effect: [146]; [156]; [165]. Whilst criticism could be made of people’s individual performances, there was no failure of the systems duty: [153]; [155]; [184].
2. The operational duty: to take operational steps to protect a specific person or persons when on notice that they are subject to a risk to life of a particularly clear and pressing kind.
(a) Care homes: When an individual is placed in a care home, a nursing home or a hospital, the State does not assume responsibility for all aspects of their physical health; it is not the guarantor of adequate healthcare in all respects: [190]. The focus must be on the specific risks to Jackie's health of which the authorities knew or ought to have known: [192]. The operational duty applies in a graduated way depending on their perception of the risk to Jackie: [199]. The care home's responsibility was to look after Jackie on behalf of the State in substitution for her family. Their task was to ensure that she could access the healthcare which is available to the population generally in the same way that a family could secure access for a vulnerable member [199] and this is what the care home staff sought to do: [200]. There was therefore no arguable breach of the operational duty by the care home: [204].
(b) Healthcare providers: When assessing whether the operational duty arose, it is necessary to take into account a range of relevant factors, including the desirability of fostering Jackie's sense of personal autonomy and a sense of trust between her and her carers, by respecting her wishes where possible: [57]-[60]; [205]. None of the healthcare professionals involved was on notice that Jackie's life was in danger on 21 February 2017 and the paramedics gave proper consideration to the question of whether she ought to be removed forcibly to hospital. They made an assessment which was reasonable in the circumstances, that the risk to her was not so great as to make that appropriate: [208]. As a result, there was no arguable breach of the operational duty by any of the healthcare providers: [209].
Comment
The judgment provides a useful summary of the various procedural and substantive duties under Article 2. In relation to the systems duty, it illustrates the importance of the CQC’s regulatory role which, shortly after Jackie’s death, had inspected the care home and was satisfied with the systems in place and standard of care. As to the operational duty, the judgment recognises that this is not limited to prisons and hospital settings and therefore could be triggered in care homes. But, crucially, actual or constructive knowledge of the nature and degree of the risk to the particular person’s life is key which, on these facts, did not trigger the duty.
