R (Maguire)  UKSC 20
On 21 June 2023 the Supreme Court handed down its eagerly awaited judgment in R (Maguire)  UKSC 20. The Court unanimously dismissed the appeal by Jackie Maguire’s mother which had challenged the coroner’s determination at the inquest that an expanded conclusion into Ms Maguire’s death was not required.
The judgment means that the threshold for Article 2 remains high in cases involving health and social care. The case is particularly helpful for its detailed and comprehensive analysis of the authorities and the relevant legal principles relating to the application of Article 2.
Jackie Maguire was a 52-year-old woman with Down’s Syndrome in addition to a moderate learning disability and personality disorder. Jackie died in hospital on 22 February 2017 from pneumonia, a perforated gastric ulcer and peritonitis. She had lived in a care home since 1993 with her placement funded by Blackpool City Council. Jackie was considered a vulnerable adult with no insight and was totally dependent on staff at the care home for her day-to-day care. For her safety she was subject to a Deprivation of Liberty Safeguarding Order (DoLS) under the Mental Capacity Act 2005 and was not permitted to leave the care home without supervision.
In February 2017, Jackie became ill and an ambulance was called by care home staff. When paramedics attended and advised that she go to hospital, Jackie refused as she was fearful of medical interventions and sought to avoid them. Whilst the paramedics were concerned that Jackie did not have the capacity to consider the consequences of failing to attend hospital, they were not qualified to administer sedation and were worried that if they used force the likelihood of harm or injury was very high and disproportionate to the state she was in. Given Jackie was stable and would be monitored, she was allowed to stay in the care home overnight on the advice of a GP. The next day Jackie’s condition deteriorated, and she was taken to hospital where she died as a result.
The appeal was based on the fact that Jackie lacked capacity to make any decisions herself, and accordingly those responsible for her care should have ensured a protocol was in place to facilitate her admission to hospital, notwithstanding her refusal. It was suggested that the absence of such a system was an arguable breach of Jackie’s rights under Article 2. This triggered the state’s procedural obligation (also under Article 2) to investigate and record a conclusion on the broader circumstances of her death.
Lord Sales gave the leading judgment in which he outlined the applicable legal framework for an Article 2 inquest, the requirement for an expanded conclusion under the Coroners and Justice Act 2009, the development of the substantive positive obligations under Article 2, and the issues in the appeal.
The Supreme Court considered both the systems and operational duty under Article 2.
Article 2 requires the state to put in place an appropriate legal regime and administrative system to provide general protection for the lives of citizens.
As with all healthcare services, in care homes the systems duty operates at a high level and will often be satisfied by the existence of a system capable of operating in a timely and effective way. Generally, individual lapses or failures within such a framework, even negligent failures, will not amount to a breach of the systems duty. In this case the Supreme Court found that there were systems in place capable of facilitating a proper standard of care for Jackie, notwithstanding that there may have been individual lapses.
As such, the Court agreed with the coroner’s assessment of both the systems in place at the care home and the various healthcare providers, finding that there was no breach of the systems duty arising from them. The Court set out the proper approach to determining whether the systems duty is engaged. The approach ought to be whether the systems in place are ‘generally reasonable’ and the state body ‘ought to be expected to have such systems in advance of any particular incident’.
The operational duty is a positive duty upon the state to protect individuals whose lives are at significant and clear risk. Lord Sales identified three different levels of graduated procedural obligation as follows:
(1) A basic procedural obligation – 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 rather than as a result of criminality. The basic procedural obligation arises immediately upon death and will inform whether other procedural obligations come into play.
(2) An enhanced procedural obligation – to take further steps in investigating possible breaches of substantive obligations imposed by Article 2 with a view to ensuring appropriate accountability and redress and, as appropriate, to punishing persons responsible for the death.
(3) A redress procedural obligation – arises where a relevant compelling reason is not present as the foundation of an enhanced procedural obligation, but there is still a possibility that the substantive obligations in Article 2 have been breached. In these circumstances there is an obligation to provide means by which a person complaining of such possible breaches may ventilate that complaint, have it investigated and obtain redress.
The Court found that the operational duty was not breached in this case because none of the healthcare professionals or care home staff involved in Jackie’s care were on notice that her life was in danger.
The state does not assume responsibility for all aspects of an individual’s physical health when they are a resident in a care home or a hospital, regardless of whether they are under a DoLS. The existence of the operational duty can only be determined by the appreciation of risk and the immediacy of that risk.
In Jackie’s case the care home was tasked with ensuring she could access appropriate medical care, which it had done by contacting the GP and the ambulance. It was not on notice, nor could it have been, as to the risk to Jackie’s life, and none of the healthcare professionals involved were on notice that Jackie’s life was in danger. The paramedics who made the ultimate decision on taking Jackie to hospital, had properly considered the question and made an assessment which was reasonable in the circumstances.
The case also did not fall within the “very exceptional circumstances” recognised in case law relating to the operational duty. This would apply when an individual patient’s life is knowingly put in danger by denial of access to life-saving emergency treatment. It is also applicable when a systemic or structural dysfunction in hospital services results in a patient being deprived of access to life-saving emergency treatment and the authorities knew about, or ought to have known about, that risk yet failed to undertake the necessary measures to prevent it from materialising. It was ultimately held that there was no arguable case for a breach of duty in this case.
In terms of the duties under Article 2, the Court distinguished between the deprivation of liberty as authorised by a DoLS and the involuntary detention and duty of the state to protect the life of the detainee. In cases of involuntary detention there is a ‘heavy onus on the authorities to account where a death occurs’ whereas in a care home or nursing home loss of liberty is ‘an incidental feature of the vulnerability of the individual resident’.
This is a shoring up of the position following Morahan and provides further clarity on the application of Article 2 in health and social care related inquests. The Supreme Court’s judgment confirms that the application of both the systemic and operational duties of Article 2 should be narrowly applied.
The circumstances of each case must be considered. Individual failings within the system are not indicative of systemic failures. Nor does a person’s vulnerability trigger an operational duty in the state unless their vulnerability puts their life at risk in a clear way which the state should recognise and guard against.
In those relatively few cases where there is an arguable breach of the systems or operations duty, the procedural obligation to investigate will be graduated depending on the perception of the risk based on reasonable assessment and taking reasonable steps accordingly.
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