The grey area between Article 2 and ordinary medical negligence? The High Court considers Parkinson and the deaths of vulnerable people in care homes

30 May 2019

As we discussed in our recent blog, some inquests will automatically be designated ‘Article 2 inquests’ if the deceased died whilst under the control of the state. Other inquests will only become Article 2 inquests if there is evidence of systemic failures of processes and systems to protect life. Therefore, a case of ordinary medical negligence would not trigger Article 2, as confirmed in Parkinson [2018] 4 W.L.R 106.

What about the death, following allegedly negligent medical care, of someone with learning disabilities who is unable to leave her locked care home without supervision?

This is the question recently considered by a Divisional Court
[2019] EWHC 1232 (Admin) and whilst the court decided to affirm Parkinson, and treat this case as one of (arguably) ordinary medical negligence, it has apparently raised the possibility of deaths in similar circumstance leading to an Article 2 inquest.

The Inquest

Jackie Maguire, a 52 year old lady with Down’s syndrome, tragically died in hospital of a perforated ulcer on 22 February 2017. At a pre-inquest review hearing on 21 December 2017, before the Parkinson decision, the Coroner ruled that Article 2 was engaged.

An inquest with a jury took place between 20 and 29 June 2018, a few days after the judgement in Parkinson was handed down.

Factual background

At the inquest, the Coroner and jury heard that Ms Maguire had been living in a care home run by a charity since 1993 and had been deprived of her liberty under the Mental Capacity Act 2005. In the week prior to Ms Maguire’s death she had been unwell. On 20 February 2017 she asked to see a GP but this was not arranged. On 21 February 2017 following a “possible collapsing episode”, one of Ms Maguire’s carers called the GP practice and was told a visit would be considered.

The carer called the GP practice again to report further symptoms and then tried the NHS out of hours service and was advised to contact the GP. At 4.59pm Ms Maguire’s GP called, spoke to a carer, and made a prescription. At 7.10pm a carer called the out of hours service again and at 7.48pm an ambulance was called by that service. The two person crew arrived at 8pm, unaware that Ms Maguire had learning disabilities. Ms Maguire refused to go in the ambulance and the paramedics were unable to persuade her, unqualified to sedate her and unwilling to use physical restraint. A paramedic spoke to an out of hours GP at around 8.30pm, this GP advised against using physical force. In the morning of 22 February 2017 Ms Maguire collapsed and was taken to hospital by ambulance where she tragically died in the evening.

The Article 2 decision

Before summing up to the jury, in light of the decision in Parkinson the Coroner ruled that the allegations of (arguable) negligence against Ms Maguire’s carers and the healthcare providers constituted individual failings which fell outside Article 2 territory.

The decision that Article 2 was not engaged was the subject of the judicial review brought by Ms Maguire’s mother, Mrs Muriel Maguire in addition to the Coroner’s decision not to leave neglect to the jury (which we do not consider here).

The judicial review

The High Court reviewed the available case law of the ECtHR and identified two principles which govern whether or not Article 2 is engaged in an inquest:

1) 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.

2) 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.

The Court confirmed that the case of Parkinson is now authority for the proposition that a medical case (in which negligent medical treatment may incur liability in tort) will not generally engage Article 2.

Applying this case law to the death in question, the Court considered that the events leading up to Ms Maguire’s death were only capable of representing individual failings, not systemic ones. And as to the question of state responsibility for Ms Maguire in the care home, Ms Maguire was deprived of her liberty under the Mental Capacity Act and this on its own is insufficient to trigger Article 2 engagement.

Might this change in the future?

On the surface, this is an uncontroversial judgement but it does quietly raise the possibility of a different coroner finding that Article 2 was engaged in a similar set of circumstances:

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.

The concept of ‘state detention’ was not explored in relation to this specific case because it was accepted that Ms Maguire was simply subject to deprivation of liberty (DOLS) which does not in itself mean that someone is detained by the state. However, in our view it is hard to reconcile this blanket approach with the ‘two principles’ which the Court in this judgment identified. To put it another way – someone in a similar situation to Ms Maguire could well be considered to be ‘under state control’ and so, as the judgement states, these cases will turn on the facts and fall to coroners to be decided.

In addition to this potential ‘grey area’, and possibly adding pressure on coroners to consider Article 2 engagement further, there is also the potential for evidence relating to the premature deaths of people with learning disabilities (see for example the Learning Disabilities Mortality Review Programme’s 2018 Report) to be used to argue that there are systemic failings by the state in circumstances such as this. Counsel for Ms Maguire’s mother included such evidence in her submissions but it was (properly) not considered because it had not been before the Coroner.

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