Limits on article 2 inquests in deprivation of liberty (DoLS) case

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01 July, 2020

In the case of R (on the application of Maguire) v HM Senior Coroner for Blackpool & Fylde [2020] EWCA Civ 738, The Court of Appeal has ruled that the state's investigative obligations under Article 2 ECHR do not arise where someone lacking capacity and deprived of their liberty (who we will refer to as J) dies of natural causes. The state's obligations under Article 2 had not been triggered in this case by the mere fact of vulnerability and that the deceased was deprived of her liberty in a care home pursuant to a standard authorisation under DoLS.

THE FACTS

J, who had Down's syndrome and learning disabilities, and so was unable to care for herself, had fallen ill at her care home in the days before her death. The care home did not provide specialist medical care. When J's condition worsened, she refused to go to hospital and was thus allowed to remain at the home overnight. However, when Js condition deteriorated she was eventually taken to hospital where she died as a result of a perforated gastric ulcer, peritonitis and pneumonia. At her inquest her family was critical of the lack of a protocol at the care home for admitting J to hospital in spite of her refusal. However, the Coroner ruled at the close of evidence that Article 2 ECHR was not engaged. This meant that the "how" question for the jury to answer under section 5(2) of the Coroners & Justice Act 2009 had to have its narrower meaning of "by what means" rather than "by what means and in what circumstances J had come by her death".

The jury who were not permitted to consider any failings on the part of those caring for J returned a conclusion of natural causes. J's mother sought judicial review of the coroner's decision, and when that application failed she appealed.

WAS ARTICLE 2 ENGAGED?

The question for the Court of Appeal was whether or not in these circumstances a positive duty was created under Article 2 which "requires the state to initiate an investigation into a death for which it may bear responsibility".

The court looked at recent cases decided in the European Court of Human Rights concerned with medical cases that focussed on a state's substantive positive obligation to protect life. These cases concluded in general that mere clinical negligence would not generally be regarded as triggering the substantive obligation on the state to hold an article 2 inquest and this would only be justified in "very exceptional circumstances. In Lopes de Sousa Fernandez v Portugal (2018) 66 EHRR 28 the court provided 2 examples of situations that might be accepted as "exceptional":

  • a specific situation where an individual patient's life is knowingly put in danger by denial of access to life-saving emergency treatment.
  • where a systemic or structural dysfunction in hospital services results in a patient being deprived of access to life-saving treatment and the authorities knew or ought to have known about the risk and failed to undertake the necessary measures to prevent the risk from materialising, thus putting the patients' lives, including the life of the particular patient concerned, in danger.

Therefore, the state's obligation does not extend to circumstances where a patient is considered to have received deficient, incorrect or delayed treatment.

Domestic caselaw was also considered including the case of Rabone v Pennine Health Care NHS Trust [2012] 2 AC 72, which at first blush would tend to fly in the face of the decisions in Maguire and Lopes. In Rabone, the Supreme Court held that an operational duty had been owed to a voluntary psychiatric patient. Lord Dyson sought to identify the "essential features" of cases where the operational duty had been recognised: where the state had assumed responsibility, e.g. towards prisoners and psychiatric patients; cases of "sufficient vulnerability", such as Z v UK (2001) 34 EHRR 79 concerning a known risk of neglect and abuse to children ignored for years by social services; and cases of "exceptional risk", such as Stoyanovi v Bulgaria (App. No. 42980/04) in which a soldier died in a parachute accident and Watts v UK (2010) 51 EHRR SE 66 (moving elderly people from one home to another).

Application to J's case

J had been deprived of her liberty for the purposes of Article 5 ECHR, pursuant to a "standard authorisation" under the DoLS scheme of the MCA 2005, Schedule A1.

The Court of Appeal ultimately concluded that J's undeniable vulnerability, and the fact that she was subject to a DoLS authorisation, were not enough - in and of themselves - to give rise to a duty to investigate her death under Article 2.

J's case was not analogous to that of a psychiatric patient, in hospital to be protected against the risk of suicide (thus it could be distinguished from Rabone). She was not in the care home to receive medical treatment but received this from the NHS just as she would have done had she been living in the community.

Nor was there any reason to believe the "very exceptional" circumstances, which can give rise to a breach of the operational duty in medical cases, applied (per Lopes de Sousa). The criticisms in J's case (that the medics and care home had failed to get her to hospital sooner, and that a protocol should have been in place) did not come close to satisfying the first exception (that the patient's life was knowingly put in danger by denial of access to life-saving treatment) nor did the case reveal any "systemic or structural dysfunction" in medical services resulting in J being denied life-saving treatment.

The Coroner had therefore been correct to conclude that there was no basis for believing that J's death had been the result of a breach of the operational duty, and the procedural obligation under Article 2 did not arise.

Forbes has acted for clients in a number of cases where persons under a DoLS have sadly died in situations where there are allegations of medical negligence. The Maguire case is important in confirming that unless there are other "exceptional circumstances" there is no requirement for an Article 2 inquest.

For more information contact John Myles in our Insurance department via email or phone on 01254 222432. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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