Supreme Court Hands Down Judgment on Scope of Article 2

The Supreme Court has today handed down judgment in R (on the application of Maguire) v HM Senior Coroner for Blackpool & Fylde [2023] UKSC 20, the appeal of an inquest into the death of Jackie Maguire, a woman with Down’s Syndrome who died of complications relating to a perforated ulcer while living under a deprivation of liberty authorisation in a care home. The case considered the scope of the operational and systemic duties that arise in the context of the state’s article 2 obligation to preserve life and its related, procedural duty, to investigate certain deaths.

In the leading judgment dismissing the appeal, Lord Sales held: [190-191]

“When an individual is placed in a care home, a nursing home or a hospital, the state’s operational duty in the targeted sense derived from Osman, para 116, does not involve an assumption of responsibility extending to taking responsibility for all aspects of their physical health, with the consequence that if he or she dies from some medical condition which was not diagnosed and treated in time the state’s duty is engaged and the enhanced procedural obligation in terms of accountability is triggered. Even though the individual may not be at liberty, the state is not for that reason made the guarantor of the adequacy of healthcare provided to them in all respects, with an enhanced obligation to account if things go wrong. That would not be consistent with the established approach in relation to cases of alleged medical negligence and the approach adopted in the suicide risk cases discussed above.

He went on, approving Popplewell LJ’s judgment dictum in R (Morahan) v West London Assistant Coroner [2021] EWHC 1603 (Admin); [2021] QB 1205

“[t]his is consistent with principle because the article 2 operational duty is not one to take steps in the abstract, but rather to take steps to avert a specific risk to life; until the specific risk to life has been identified, it is impossible to answer the duty question. Just as in the domestic tortious law of negligence it is not sufficient merely to ask, ‘Is there a duty’ but rather, ‘Is there a duty not carelessly to inflict a particular type of damage?’, so too the article 2 operational duty must be examined and defined as a duty to take reasonable steps to avoid the specific risk to life which is relevant in the circumstances of a given case.”

In terms of the systems duty Lord Sales held:

145 “The position in relation to care provided at the care home [in which Jackie lived prior to her death] was essentially the same as that in relation to the systems duty in relation to the provision of healthcare services as discussed in Powell, and reiterated in Fernandes, para 187, and Oliveira, para 106. The state has put in place a regulatory regime designed to ensure that a high standard of care is delivered in care homes, which is monitored and enforced by the CQC as the dedicated regulator in this area. As the Strasbourg Court emphasised in Fernandes, para 169, in cases concerning medical negligence “the court has rarely found deficiencies in the regulatory framework of member states as such”; and at para 190 it explained that it was only in “very exceptional circumstances”, as described at para 192, that the substantive responsibility of the state under article 2 would be engaged in respect of the acts and omissions of healthcare providers. This indicates that the systems duty in this area operates at a high level, is relatively easily satisfied, and it will only be in rare cases that it will be found to have been breached.

146. It is clear that 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 at the home, even though there may have been individual lapses in putting them into effect. As explained in Humberstone, para 71, and Parkinson, para 91, individual lapses in putting a proper system into effect are not to be confused with a deficiency in the system itself. The same point was made in Fernandes, para 19 …

147. There is no sound basis for adopting a different approach to the provision of care in a care home as distinct from in a hospital or other healthcare environment. If anything, one would expect higher (or, at least, equivalently high) standards to be required according to the systems duty under article 2 as it applies to healthcare providers, as they will in many situations be directly on notice of a risk to life in relation to patients in their care to an extent going beyond what would usually be the case in a care home. The individual being cared for may be vulnerable and may suffer a loss of liberty in both environments, but this does not change the application of the systems duty in the healthcare context and it is difficult to see why it should make a significant difference in the ordinary care context. Moreover, in the healthcare context the scope of the systems duty is modulated to take account of the specific type of risk in relation to which the state has assumed a responsibility to protect the individual in the light of his or her specific circumstances, and there is no good reason to adopt any different approach in the ordinary care context.

Making clear the Supreme Court’s view that the systems duty is a narrow one, he held:

160 “One can almost always say that a system could be improved and made more effective by dedicating more resources to its operation, for instance by trying to create more comprehensive and effective ways to record and share information. But the Strasbourg Court has emphasised that it is not for the court, but rather for the competent authorities of a contracting state to consider how their limited resources should be allocated between competing priorities: Fernandes, para 175. This principle underscores how limited are the circumstances in which it will be appropriate to find a breach of the systems duty.”

Jenni Richards KC and Nicola Kohn acted for the appellant, instructed by Anna Thwaites and Joanna Bennett at Bindmans LLP