The Court of Appeal in R(Maguire) v HM Senior Coroner for Blackpool & Fylde  EWCA Civ 738 has held that there are (perhaps surprising) limits to the obligation upon the state under Article 2 ECHR to investigate the death of those subject to the Deprivation of Liberty Safeguards.
The case concerned an inquest into the death of a 52 year old woman, Jacqueline (Jackie) Maguire. Ms Maguire had a diagnosis of Down’s syndrome and moderate learning difficulties. She required one-to-one support and had severely compromised cognitive and communication abilities. By the time of her death, she suffered limited mobility, needing a wheelchair to move around outside. She had lived for more than 20 years in a care home in Blackpool where she was deprived of her liberty pursuant to a standard authorisation.
In the week prior to her death, Ms Maguire had complained of a sore throat and had a limited appetite. For about two days before she died, she had suffered from a raised temperature, diarrhoea and vomiting. On 20 February 2017, Ms Maguire asked to see a GP. Staff at the care home did not act on that request. There then followed a chain of events which included a failure on the part of a GP to respond to calls and make a home visit; a further failure on the part of the out of hours GP to triage Ms Maguire properly or to elicit a full history from carers; and poor advice being given to the carers from NHS111. In fact the first medically trained personnel to attend Ms Maguire were an ambulance crew after 8pm on the 21 February 2017, however they had not been notified that Ms Maguire had Down’s syndrome and they found themselves unable to take her to hospital as she simply refused to go.
Ms Maguire therefore remained at the care home overnight. She was found collapsed the following day. She was admitted to hospital by ambulance and died that evening. A post-mortem examination concluded that her death was as a result of a perforated gastric ulcer with peritonitis and pneumonia.
The coroner at a Pre Inquest Hearing determined that Article 2 ECHR was engaged and therefore conducted the inquest on this basis. However, at the conclusion of the evidence, the coroner reconsidered the position in light of the decision of R (Parkinson) v Kent Senior Coroner  EWHC 1501 (Admin) which had been handed down shortly before the hearing had begun. Relying on this decision, the Coroner ruled that the allegations against Ms Maguire’s carers and healthcare providers amounted to allegations of individual negligence, which Parkinson had clarified as falling outside the state’s obligations under Article 2.
The application for judicial review
The application for judicial review contended that the Coroner was wrong to conclude that Article 2 did not apply. It was argued that the law had developed so that the court should now recognise the state’s positive obligations under article 2 towards those who may be described as “particularly vulnerable persons under the care of the state”. Alternatively, the Coroner ought to have concluded that there was sufficient evidence of systemic problems in events leading to Jackie’s death that article 2 ought to have been left to the jury. There had been no effective communication system between those authorities charged with protecting Jackie (GP services, NHS111, the ambulance service and the hospital) and no individual with oversight of Jackie’s healthcare who could convey an accurate account of her symptoms in circumstances where she was unable to do so. These were regulatory and structural failures. Together with the failure to sedate Jackie on the evening of 21 February, they were capable of amounting to systemic dysfunction.
The second ground of challenge was that the Coroner had erred in law in failing to leave neglect to the jury.
The Divisional Court held that this was not a case in which in which there had been an assumption of responsibility on the part of the State; and the chain of events that led up to Ms Maguire’s death was not capable of demonstrating systemic failure or dysfunction. The Divisional Court found that such failings as there may have been were attributable to individual actions and so did not require the state to be called to account. The Divisional Court also found, on the facts, that Coroner had been entitled to find there was no individual failing on the part of those involved which could safely be said to be gross, so as to require him to leave a finding to the neglect.
The application for judicial review was therefore refused.
Her mother appealed to the Court of Appeal in relation to the Coroner’s approach to Article 2 ECHR.
The core of the appeal concerned the question of whether the case was a ‘medical’ case, or whether it was a case where the State had assumed responsibility for Ms Maguire. If it was a ‘medical’ case, then, following the Grand Chamber’s decision in Lopes de Sousa Fernandez v Portugal (2018) 66 EHRR 28, it would only be in “very exceptional” circumstances that the State’s substantive responsibility under Article 2 ECHR would be engaged. Absent those circumstances, there is no ‘parasitic’ obligation upon the State to ensure the discharge of the heightened procedural obligations that arise from a death for which the State is responsible.
Determining the appeal required the Court of Appeal to undertake a detailed analysis of the complex Strasbourg case-law. It also then had to grapple with how those mapped onto the DoLS regime, and at paragraphs 52 onwards, gave a potted history of that regime, which in material part reads as follows:
52. Jackie [note, this is how the Court of Appeal referred to her] was placed by Blackpool Council in the small private residential home run by United Response in 1993. In doing so they were discharging their statutory functions of support for an adult with Jackie’s combination of difficulties. She had lived at home between 1982 and 1991 but then exhibited bouts of extreme behaviour, diagnosed as a cyclothymic personality disorder. She first moved to an assessment centre before going to the United Response home. She could communicate – indeed her mother described her as a chatterbox. In recent years spinal problems had restricted her mobility to the extent she used a wheelchair for trips outside the home.
53. Jackie was unable to care for herself and her circumstances made it unrealistic to suppose that she could continue to live with her family. The home provided a safe and caring environment in which Jackie could live. She was neither physically capable nor sufficiently aware to be able to leave the home on her own. It would have been dangerous for her to do so. As is universally the case in such homes, and in residential and nursing homes looking after the elderly who might harm themselves if they leave unsupervised, entrance and exit was strictly controlled. That ensured that residents could not leave unnoticed and thereby expose themselves (and others) to danger.
54. That state of affairs had been the reality on the ground for many decades. Nonetheless, the question whether such individuals were deprived of their liberty for the purposes of article 5 ECHR arose for consideration only relatively recently. The significance of the question, for the purposes of article 5 ECHR, was that deprivation of liberty is permitted in limited circumstances and then only supported by clear legal mechanisms.
55. In HL v. United Kingdom (2004) 40 EHRR 761 the Strasbourg Court was concerned with the question whether a mentally disabled and autistic man informally admitted to hospital for a protracted period, where he was sedated, keep under close supervision and would have been physically prevented from leaving had he tried to do so, was detained for the purposes of article 5. He was later detained under the Mental Health Act 1983. The court concluded that the care professionals exercised complete control over him and he was not free to leave. He was therefore deprived of his liberty. As Lady Hale later put it in P v. Cheshire West and Chester Council  1AC 896, at para. 8:
“It therefore became necessary for this country to introduce some … machinery for the many thousands of mentally incapacitated people who are regularly deprived of their liberty in hospitals, care homes and elsewhere.”
56. The legislative solution was to amend the Mental Capacity Act 2005 by the Mental Health Act 2007. Deprivation of liberty was permitted: (a) if authorised by the Court of Protection; (b) if authorised under the procedures provided for in Schedule A1 which deals with hospitals and care homes within the meaning of the Care Standards Act 2000; and (c) in order to give life sustaining treatment or to prevent a serious deterioration in a person’s condition whilst court proceedings are pending. The safeguards in the second category were designed to secure a professional assessment independent of the hospital or care home in which the person concerned was resident, directed at two questions. First whether the person lacks capacity to make the decision whether to be in the hospital or care home for care or treatment. Secondly, whether it is in his or her best interests to be detained. If the answer to both questions is yes, then a standard authorisation may be granted administratively, subject to challenge in the Court of Protection.
57. The degree to which an individual’s living circumstances could be construed as constituting a deprivation of liberty within the meaning of Article 5 ECHR so as to require authorisation of the Court or some other form of administrative authorisation was considered in Cheshire West. Two of the appellants before the Supreme Court were young adults. One lived in foster care, the other in an NHS facility. Both had complex needs including learning disabilities. The third was a man in his 30s with Down’s Syndrome and cerebral palsy who had lived with his mother until her health deteriorated. The local authority obtained orders from the Court of Protection that it was in his best interests to live in accommodation arranged by them. There was no dispute that all the placements were suitable for all three with “positive features”. Nonetheless, the question was whether they were deprived of their liberty. The Court of Appeal had concluded that they were not, but the Supreme Court, by a majority of four to three, came to the opposite conclusion.
58. The result was that across the country steps were taken in a substantial number of instances to seek authority to deprive people of their liberty in circumstances which had been thought unnecessary until then. Nothing changed in the practical arrangements in place for many in hospitals and care homes, but the appropriate authority was sought.
Mapping the Strasbourg obligations onto the facts of Ms Maguire’s case, the Court of Appeal noted that:
68. Jackie was a vulnerable adult who was unable to care for herself. She had learning disabilities which affected her ability to make choices for herself. She lacked capacity to make decisions affecting her living arrangements, healthcare and welfare. She shared those characteristics with a large number of young adults who, for a wide variety of reasons, are in a similar position. An increasing number of elderly adults are in a parallel situation as a result of the infirmities of old age, especially diminished mental faculties or dementia. Individuals who share these characteristics may be accommodated in a range of different circumstances. Many live at home cared for by family members. Large numbers live in care or nursing homes, some paying for the care themselves, others with public funding. Others are under the more direct care of a local authority or the NHS. Since the amendment to the Mental Capacity Act 2005 made in 2007, and more particularly since the decision of the Supreme Court in Cheshire West, a substantial number of them will be subject to DoLS with the consequence that were they to seek to leave the home or hospital in which they reside their carers would have lawful authority to stop them.
The underlying argument made by the Appellant was that “the undeniable vulnerability of an individual in Jackie’s position, coupled with the fact of a DoLS authorisation dictates that she was owed the operational duty under of article 2 ECHR with the result that the procedural obligation explained in Middleton applied and the jury should have been able to comment on the quality of medical care provided to Jackie and the absence of any plan for emergency admission” (paragraph 70).
However, the Court of Appeal observed, it was important to focus on the scope of the operational duty and why it might be owed. Its analysis of the Strasbourg case-law led it to conclude (at paragraphs 72-3) that:
- The Divisional Court was right to identify the unifying feature of the application of the operational obligation or duty to protect life as one of state responsibility, and arising in circumstances where the State owes a substantive to the people concerned to protect them from a type of harm entirely within the control of those who cared for them. Examples of this situation included those considered in the case of (1) Nencheva v. Bulgaria (App. No 48606/06), where the Bulgarian state was in breach of its positive obligation for failing to take prompt action to protect the lives of young people in a residential care home where 15 disabled children died, in circumstances where the authorities were aware of the appalling conditions in the care home and of an increased mortality; and (2) Câmpeanu v. Romania [GC] (App. No. 47848/08), where the Romanian authorities knew that the facility in which the deceased was kept lacked proper heating and food, had a shortage of medical staff and resources and inadequate supplies of medication, such that placing the individual in question in the institution unreasonably put his life in danger, a danger compounded by their continuing failure to provide him with medical care. The Court of Appeal therefore concluded that this meant that the Article 2 substantive obligation is tailored to harms from which the authorities have a responsibility to protect those under its care (paragraph 73);
- The fact that an operational duty to protect life exists does not lead to the conclusion that for all purposes the death of a person owed that duty is to be judged by Article 2 standards. Relying heavily on the case of Dumpe v Latvia, in which on (the Court of Appeal considered) similar facts, the ECtHR had considered that the operational duty did not apply to the provision of medical treatment of someone in a care home, the Court of Appeal concluded that the procedural obligation is not the same where the death has not resulted from neglect or abuse for which the State could or should be held liable. Rather, the procedural obligation is to set up an effective judicial system to determine liability – which could include the civil courts, as well as the operation of an inquest.
Rejecting the central grounds of appeal, the Court of Appeal held that:
96. The question whether an operational duty under article 2 was owed to Jackie is not an abstract one which delivers a “yes” or “no” answer in all circumstances. She was a vulnerable adult incapable of looking after herself and lacking capacity to make decisions about her care. As the decisions of the Strasbourg Court in Nencheva and Câmpeanu show, the article 2 operational duty is owed to vulnerable people under the care of the state for some purposes. If a death in this jurisdiction in a hospital or care home for which the state was responsible resulted from conditions described in either of those cases, the substantive or operational duty under article 2 ECHR would be engaged. So too if the state was aware of the shortcomings, through regulatory inspections, and did not act on them. There would be a direct analogy in the latter situation with the failure of social services to protect children over a prolonged period when they knew of serious abuse (Z v. United Kingdom discussed in para. 46 above). The potential application of the operational duty discussed in Watts v. United Kingdom (see para. 45 above) when moving vulnerable elderly people from one home to another on account of the exceptional risk involved is another example of the operational duty arising within a defined area of activity.
97. The approach illuminated by those cases (and the prison cases) does not support a conclusion that for all purposes an operational duty is owed to those in a vulnerable position in care homes, which then spawns the distinct procedural obligation (with all its components) in the event of a death which follows either alleged failures or inadequate interventions by medical professionals. On the contrary, as Dumpe most clearly demonstrates, it is necessary to consider the scope of any operational duty. Had Mr Dumpe’s death followed ill-treatment or neglect of the sort considered by the Strasbourg Court in Nencheva and Câmpeanu the position would have been different. The circumstances of the death would be judged by reference to the operational duty.
98. In our view, there is a close analogy between the circumstances of Jackie’s death and that of Mr Dumpe. The criticisms of medical care in Dumpe were in fact more wide-ranging. Dumpe was a decision of a Chamber of the Strasbourg Court and so lacks the authority of a Grand Chamber judgment.
99. The decision in Dumpe may not represent “clear and constant jurisprudence of the Strasbourg Court” but there is no decision of that court to which our attention has been drawn which suggests that the operational duty is owed to those in an analogous position to Jackie in connection with seeking ordinary medical treatment. To hold that the operational duty was engaged in this case would certainly be to move beyond any jurisprudence of the Strasbourg Court. The conclusion would not flow naturally from existing Strasbourg jurisprudence, as the conclusion in Rabone did in respect of involuntary psychiatric patients at risk of suicide (see Lord Brown’s observation quoted in para. 43 above). In any event, we respectfully agree with the reasoning in Dumpe which in our view flows from the decisions to which the court referred, is consistent with the approach to deaths from natural causes of prisoners, and applied the decision of the Grand Chamber in Lopes de Sousa. The caveat in para. 163 of Lopes de Sousa does not affect the outcome in a case of this sort.
100, In our judgment, the coroner was right to conclude that, on the evidence adduced at the inquest, there was no basis for believing that Jackie’s death was the result of a breach of the operational duty of the state to protect life. It followed that the procedural obligations on the state identified in Jordan did not arise. For the purposes of the inquest the conclusions were governed by section 5(1) of the 2013 Act and in particular “how Jackie came by her death” rather than “how and in what circumstances”.
101. Jackie’s circumstances were not analogous with a psychiatric patient who is in hospital to guard against the risk of suicide. She was accommodated by United Response to provide a home in which she could be looked after by carers, because she was unable to look after herself and it was not possible for her to live with her family. She was not there for medical treatment. If she needed medical treatment it was sought, in the usual way, from the NHS. Her position would not have been different had she been able to continue to live with her family with social services input and been subject to an authorisation from the Court of Protection in respect of her deprivation of liberty whilst in their care.
The Court of Appeal then rejected the alternative submission that, even if this was a “medical case”, it fell into the category of “very exceptional circumstances” which can give rise to a breach of the operational duty under Article 2. It noted that:
106. There is nothing in the materials before us which suggests that there is a widespread difficulty in taking individuals with learning disabilities (or elderly dementia patients) to hospital when it is in their interests to do so. The criticism of the care home, the paramedics and the out of hours GP is that between them they failed to get Jackie to hospital on the evening of 21 February; and that a plan, protocol or guidance should have been in place that would have achieved that end. That is remote from the sort of systemic regulatory failing which the Strasbourg Court has in mind as underpinning the very exceptional circumstances in which a breach of the operational duty to protect life might be found in a medical case. The making of plans in individual cases and the detail of guidance given to paramedics is far removed from what the court describes in the passage we have set out.
It is, one might think, a strange asymmetry in the law that the State may have authorised a deprivation of liberty of a person, in a State-regulated facility, but not at the same time be considered to be under an operational duty to secure the right to life of that person such as to give rise to the full-fledged duty to investigate and account for the circumstances of their death.
It is, with respect, perhaps a little challenging that the Court of Appeal had to find the answer to that question in the decision in the case of Dumpe – an admissibility decision in which the Strasbourg court had not had to grapple with the full thorniness of the different levels of Article 2 obligation because it could find that the applicant had not exhausted their domestic remedies. As the Court of Appeal noted, the Strasbourg court had also not – in that case – grappled with the question of the relevance of State involvement in authorising deprivation of liberty, as Article 5 had not formed part of its consideration.
With respect, therefore, Dumpe does not provide the soundest of foundations upon which to establish the distinction that the Court of Appeal found itself constrained to identify.
The real answer may lie in the fact that the concept of deprivation of liberty as developed in England and Wales has escaped very significantly beyond the bounds of that identified by Strasbourg. The potted history of the DoLS regime given by the Court of Appeal gives a hint of this, emphasising the universality (and, the tenor suggests, the unexceptionable nature) of the arrangements made for those in the position of Ms Maguire.
If the concept had retained the link to the exercise of coercion that was so central to the underlying Strasbourg case-law, then there would be no need to engage in the challenging intellectual exercise of explaining why not all deprivations of liberty are equal when it comes to engaging the obligations of the State under Article 2 ECHR. Put another way, if every deprivation of liberty always and everywhere involved the exercise of power (either directly by, or sanctioned by the State) to bring about a state of affairs contrary to the will of the person, then it would be very difficult to see why that should not carry with it the corollary that an obligation would arise to secure the right to life of that person. Conversely if – as is now the case in England & Wales – a deprivation of liberty can arise in circumstances where there is no indication that the person was unhappy with the situation, but they lacked the capacity to consent to the arrangements for them, then it is not so obvious why the operation of reactive mechanisms to ensure a check on those arrangements should automatically give rise to such an obligation (I should note that it is not clear from the judgment what Ms Maguire felt about her living situation).
Entirely coincidentally, just before this judgment was handed down, Dr Lucy Series and I were discussing her work on the evolution of the concept of confinement for purposes of care, our conversation being available here.
As a final note, it may have been the case that there was nothing on the materials before the Court of Appeal to suggest that – at the time it considered the matter in February 2020 – there was a “widespread difficulty in taking individuals with learning disabilities (or elderly dementia patients) to hospital when it is in their interests to do so.” However, many might consider that the issue over the past few months of the COVID-19 is not so clear-cut.
 “The Court would emphasise at the outset that different considerations arise in certain other contexts, in particular with regard to medical treatment of persons deprived of their liberty or of particularly vulnerable persons under the care of the state, where the state has direct responsibility for the welfare of these individuals. Such circumstances are not in issue in the present case.”
 At least in circumstances where there could be any suggestion that the State’s failings may have brought about or hastened the person’s death, as opposed to the position where there could be no suggestion but that the death was as a result of natural causes with no suggestion of any failure on the part of the State.