Devall & Corcoran v Ministry of Justice [2022] EWHC 1608 (QB). 23 June 2022 (judgment here)
An appeal from a refusal to strike out a civil claim might not look immediately relevant for coronial law, but Mr Justice Soole’s detailed analysis of whether there is at least an arguable Art 2 operational duty to obtain healthcare for someone who was vulnerable but was not in state detention makes essential reading: revealing, as it does, how the boundaries of Article 2 are still being explored as new factual scenarios arise.
The background
The deceased in this case was a 28-year-old man, who had recently been a prisoner but had been released on licence a month earlier. He was living in an Approved Premises[1] under a night-time curfew as a condition of his licence. On the day of his death the staff had tried to rouse him from his bed several times over a two hour period by clapping their hands and shouting his name and shaking him, but all to no avail. Despite his family phoning the premises and inquiring after him he was left undisturbed by staff for another four hours. When eventually someone thought to get him some medical attention it was far too late, he was only just alive, and sadly soon stopped breathing. A 999 responder could not revive him, he had died from the natural cause of pneumonia.
A civil claim was brought alleging a breach of the systemic and operational duties under Article 2. It was said that the Defendant had failed to take reasonable operational measures which would have had a significant chance of preventing this death. These included staff seeking emergency medical treatment for him when they were initially unable to rouse him.
The Defendant responded with strike out application, brought inter alia on the basis that Art 2 obligations could not arguably arise in a case concerning the medical care of a person living in the community. When the first instance judge refused that application the Ministry of Justice appealed.
The general / systemic Art 2 duty
The Defendant acknowledged that there was a general systemic duty to establish a framework of law, precautions and procedures that might to the greatest extent reasonably practicable, protect citizen’s lives. However that duty was said to be satisfied by the general availability to those in the community of local NHS services and it was denied that any additional obligation existed in Approved Premises in the circumstances of this case. It was argued that the cases of Parkinson[2] and Lopes de Sousa[3] had set a very high bar to overcome in cases involving community medical care, as had been acknowledged by the Court of Appeal in R (Maguire) v Blackpool and Fylde Senior Coroner.[4] It was argued that no general responsibility had been assumed for the deceased in the community and the state was not obliged to ensure that staff at Approved Premises had any particular medical expertise. It was averred that staff at Approved Premises had limited responsibilities towards residents who, unlike inmates in prison, are provided with healthcare services through community avenues, as is the case for most people who are not in state custody. The deceased was subject to a curfew and was required to keep in touch with his supervising officer, but otherwise he was free to come and go from the Approved Premises as he wished.
The operational Art 2 duty
As for the operational Art 2 duty it was argued for the Defendant that no such obligation arose because the deceased was not in the state’s care for the purpose of giving him medical care. Considering the Rabone[5] criteria, it was argued that there was no arguable claim that the deceased was at real and immediate risk of death from some cause of which the authority was or ought to be aware; nor that there was any relevant assumption of responsibility to protect him from the type of harm in question; nor was he vulnerable in the sense relevant to the existence of the duty; nor was there exceptionality of risk.
Following Morahan[6] it was said that the scope of the duty did not extend to protecting him from the medical event he had experienced. He was in the Approved Premises in order to prepare him for release back to civil society; he was not there to receive medical treatment.
The decision
Mr Justice Soole did not agree that this claim had no reasonable prospects of success. Rather, recognising that the boundaries of Art 2 are not fixed, he considers it ‘properly arguable’ that the requirement for those on licence to reside in Approved Premises involved a sufficient form of State control outside the ‘paradigm examples’ already identified by the European Court of Human Rights of prisoners, detainees under mental health legislation, immigration detainees and conscripts.
The Judge cited the recent Divisional Court’s recent decision in Gardener[7] where the ingredients of the Article 2 operational duty were summarised as follows:
(i) a real and immediate risk to life is a necessary but not sufficient factor for the existence of an Article 2 operational duty;
(ii) generally, the other necessary factor is the assumption by the State of responsibility for the welfare and safety of particular individuals, of whom prisoners, detainees under mental health legislation, immigration detainees and conscripts are paradigm examples since they are under State control;
(iii) however, the duty may exist even in the absence of an assumption by the State of responsibility, where State or municipal authorities have become aware of dangerous situations involving a specific threat to life which arise exceptionally from risks posed by the violent and unlawful acts of others, or man-made hazards, or natural hazards, or from appalling conditions in residential care facilities of which the authorities had become aware.
As to the ‘real and immediate risk’ of which the Defendant knew or ought to have been aware, his Lordship was persuaded that there was sufficient in the pleaded allegations to meet the test for the case to proceed to trial. These were also some of the factors which potentially supported an assumption of relevant responsibility; and included knowledge of the deceased’s vulnerabilities (as a person recently released from prison with a past history of drug use) and the successive unsuccessful attempts to rouse him.
The judge found that there was an ‘arguable assumption of responsibility’ if the relevant events, i.e. including what the staff allegedly observed, had taken place during the hours of curfew and, notwithstanding that residents were not under physical (as opposed to legal) restraint, during daytime hours. The claim should be allowed to proceed to trial.
Commentary
This judgment confirms that the extent of Art 2’s reach continues to be an evolving area of law with ever-expanding boundaries. The judge was not persuaded that the decisions in Morahan and Maguire must inevitably lead to the conclusion that Lopes de Sousa had now closed off any further development in medical cases, at least in a case which arguably falls within the Grand Chamber’s caveat at §163 of the Lopes de Sousa decision, 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”
Accordingly, said the judge, the Court should continue to exercise considerable caution before striking out or dismissing such claims on a summary basis.
Of course, it remains to be seen if this case will succeed when it does eventually come to trial. However, in the coronial arena, where only a ‘credible suggestion’ that there has been a breach of an Art 2 right needs to be demonstrated to engage the procedural (investigative) obligations and trigger s.5(2) CJA 2009, it may now be harder to say that shortcomings in medical care provided to a vulnerable person who is not subject to detention but where the state retains some oversight of them, are not now ‘arguable’ breaches of Art 2.
Happily, however, with Morahan due to be heard in the Court of Appeal next month and Maguire heading to the Supreme Court, the picture should be about to become much clearer.
Footnotes
[1] These are premises which have been approved by the Secretary of State under s.13 Offender Management Act 2007. Their operation is governed by the 2014 Regulations. As summarised in the Foreword to the July 2017 Report by HM Inspectorate of Probation: ‘They act as a half-way house between prison and home, and have two main roles: to help rehabilitate and resettle some of our most serious offenders, and to make sure that the public are protected in the offenders’ early months in the community.’
[2] R (Parkinson) v Kent Senior Coroner [2018] EWHC 1501 (Admin)
[3] Lopes de Sousa Fernandes v Portugal (2018) 66 EHRR 28
[4] [2020] EWCA Civ 738; [2021] QB 409.
[5] Rabone v Pennine Care NHS Trust [2012] UKSC 2;
[6] R (Morahan) v West London Assistant Coroner [2021] EWHC 1603 (Admin); [2021] 3 WLR 919
[7] R (Gardner) v. Secretary of State for Health and Social Care [2022] EWHC 967 (Admin)