R (Maguire) v HM Senior Coroner for Blackpool and Fylde, [2023] UKSC 20 (judgment here)
Anyone who had been holding their breath waiting for the Supreme Court’s decision in Maguire can now breathe out. Nothing has changed. The Senior Coroner, the Chief Coroner,[1] a High Court judge, and four Court of Appeal judges were all right. Article 2 procedural obligations are not engaged when someone who was living in the community and deprived of their liberty using powers in the Mental Capacity Act falls fatally ill and there is some delay to them receiving NHS care.
In a detailed and close analysis of the authorities and the relevant principles, this recent judgment helpfully distils the many complex issues around the application of Art 2 and healthcare into a lengthy, but extremely clear, exposition of the applicable law.
The background
Jacqueline Maguire lived in a residential care-home in the community, funded by the local authority. When she became unwell an ambulance was called and paramedics attended but Ms Maguire declined their advice to go to hospital. The paramedics’ assessment was that the situation did not warrant restraining Ms Maguire and manhandling her to get her to hospital. On the advice of a GP, she was permitted to stay at the care-home overnight (although the GP accepted at the inquest that her triage decision was poor and that she should have advised an immediate admission to hospital). When her condition had worsened the next day Ms Maguire was taken to hospital, where she died as a result of pneumonia and a perforated gastric ulcer with peritonitis.
The appellant’s case was that, as she lacked the mental capacity to make the decision herself, a protocol should have been in place for admitting Ms Maguire to hospital despite her refusal. It was argued the absence of such a system arguably breached Ms Maguire’s Art 2 rights, and consequently the state had a procedural obligation under Art 2 ECHR to investigate her death with s.5(2) CJA 2009 requiring an extended conclusion by the inquest jury.
The Senior Coroner did not agree. Indeed the Coroner found that there had been no failure by the care home or the ambulance service to have appropriate systems in place, and that what was being alleged amounted to no more than medical negligence by healthcare staff.
The inquest concluded in July 2018 with the jury finding that Ms Maguire’s death had been from natural causes. The case then went on a 5 year journey through our court system, ending in the Supreme Court where Lord Sales took the opportunity to provide his erudite exposition of Art 2 as it relates to coronial investigations.
Article 2 framework of obligations
The relevant national and ECHR jurisprudence has already clearly established that a state’s duty under Art 2 to take ‘appropriate steps to safeguard the lives of those within their jurisdiction’ could give rise to two types of substantive positive obligations: first the systems duty, which requires appropriate legal regimes and administrative systems to be in place to provide general protection for the lives of citizens, and second, the operational duty, to take operational steps to protect a specific person (or group of people) if it is known (or should be known) they are at a real and immediate risk to life.
It is also well established that Art 2 additionally imposes procedural obligations regarding the investigation of potential breaches of those substantive duties, thereby giving the opportunity to call state authorities to account.
No monolithic procedural obligation
The Supreme Court drew on the earlier ‘meticulous’ first instance judgment of Popplewell LJ in the case of Morahan[2] when identifying the three different levels at which different aspects of the Art 2 procedural obligation might apply. As Lord Sales put it – there is no simple monolithic form of procedural obligation which applies in every case. Rather, the procedural obligation applies in a graduated way depending on the circumstances of the case and the way in which in a particular context the state:
- A basic procedural obligation: requiring state authorities to take some steps to establish whether the cause of a death is from natural causes, so as to check whether there might be any question of a potential breach of a person’s right to life under Art 2.
This obligation, which arises immediately upon death, and will inform whether other procedural obligations come into play, is already satisfied in England and Wales by providing a system requiring medical certification of deaths with coronial oversight of those cases where a MCCD is not given and/or that are not natural deaths and/or occur in state custody (see s.1 CJA 2009);
- An enhanced procedural obligation: which requires the state to take additional proactive steps to investigate possible breaches of an Art 2 substantive obligation and ensure appropriate accountability.
This enhanced procedural obligation applies where there is a particularly compelling reason why the state should be required to give an account of how a person came by their death.[3] This obligation is most often satisfied in England and Wales by the a statutory obligation placed on a coroner or jury at an inquest to state an expanded form of conclusion under s.5(2) CJA 2009
- A redress procedural obligation: which arises where there is no relevant compelling reason giving rise to the ‘enhanced procedural obligation’, but there is still a possibility that a substantive Art 2 obligation has been breached, and so the state should provide a means by which a person complaining of possible breaches can raise that complaint, have it investigated and obtain redress for any breach found.
A combination of an inquest that can determine the cause of death (without any requirement of an expanded conclusion) and the availability of a civil claim for damages for negligence will often satisfy this obligation.
Against that background the Supreme Court considered the specifics of Ms Maguire’s case, recognising that the appeal raised an important issue about the boundary between the systems duty and the operational duty if, as was postulated in Fernandes,[4] it might be shown that the public authorities had put an individual’s life at risk through the denial to them of the health care which they had undertaken to make available to the population generally.
Issues for the court
The questions the court considered were:
Was there an arguable breach of the systems duty on the part of the care home or healthcare providers, so as to trigger the enhanced procedural obligation?
In the context of care homes, just as in the context of healthcare services, the systems duty operates at a high level and is relatively easily satisfied. It will only be in rare cases that it will be found to have been breached. Where the duty to have an adequate system in place has been met, then lapses in individual performances within those state systems, even negligent professional performance, will not, generally, amount to failures of the systems duty.
The Supreme Court held that even though there may have been individual lapses in putting those systems into effect, the systems in place were capable of being operated in a way which would ensure that a proper standard of care was provided to Ms Maguire.
The court criticised the applicant’s case as involving “a strong element of ‘reverse engineering’ in terms of trying to formulate the obligations said to be owed under the umbrella of the systems duty, by looking at what happens to have gone wrong and then trying to formulate an alleged obligation tailored to that case.” It was said that what the authorities show is that the proper approach to the systems duty is to look forward and assess the systems which it is generally reasonable to expect the relevant body to have in place in advance of any incident. Lord Sales considered that the view of a domestic regulator such as the CQC or the bodies responsible for oversight of the healthcare providers that suitable systems are in place will usually be powerful evidence that the systems duty has been satisfied, since that is precisely how they approach that question. Furthermore, one can almost always say that a system could be improved by dedicating more resources to its operation, but that a system can be improved does not mean it is inadequate. It is not for the court to consider how limited resources should be allocated between competing priorities.
In the present case the coroner had examined the care home and healthcare systems in place, and his conclusion that there was no arguable breach of the systems duty was one he was entitled to come to on the evidence.
Was there an arguable breach of the operational duty on the part of the care home, so as to trigger that obligation?
When a person is resident in a care home, a nursing home or a hospital, this does not mean the state assumes responsibility for all aspects of their physical health. Even though the individual may not be at liberty, the state is not made the guarantor of the adequacy of healthcare provided to them in all respects
To determine the existence of an operational duty one must focus on the specific risks to life of which the authorities were aware. The operational duty applies in a graduated way depending on the perception of the risk. In this case the care home’s responsibility was to look after Ms Maguire on behalf of the state in substitution for her family. Their task was to ensure that she could access the healthcare which was available to the population generally. The care home staff had sought to do this in calling an ambulance and a GP to attend on her. There was therefore no arguable breach of the operational duty by the care home.
Was there an arguable breach of the operational duty on the part of any of the healthcare providers, so as to trigger that obligation?
When assessing whether any operational duty fell on healthcare providers, it was relevant that none of the healthcare professionals involved was on notice that Ms Maguire’s life was in danger when first called to attend her. When she declined admission although she lacked capacity, it was considered desirable to foster her sense of personal autonomy and preserve trust between her and her carers, by respecting her wishes. Proper consideration was given to whether to remove her forcibly to hospital. It was a reasonable assessment that the magnitude of the risk to her did not make that appropriate.
The concerns expressed in Fernandes, that Art 2 may be breached by the denial of healthcare, referred to a specific situation that did not arise here (where an individual patient’s life was knowingly put in danger by denial of access to life-saving emergency treatment). This did not extend to circumstances where a patient was considered to have received deficient, incorrect or delayed treatment.
In Ms Maguire’s case there had, therefore, been no arguable breach of the operational duty by any of the healthcare providers. The appeal was dismissed
Other musings
As an aside within his ruling, Lord Sales drew attention to the problem posed to the Supreme Court Justices by the coroner having adopted a neutral stance on this appeal throughout.[5] At first instance and in the Court of Appeal, the main submissions in opposition to the application had been presented by the organisation responsible for the Care Home. In the Supreme Court, however, no respondent apart from the Senior Coroner made any submissions.
The coroner’s own contribution had been by way of submissions about the general legal framework in which inquests take place, but the court did not have the assistance of full argument to understand the detailed factual circumstances of this case and how they might bear upon the issues in the appeal.
In future, Lord Sales suggested, the onus should be on counsel for a coroner, whilst remaining neutral, to act as an advocate to the court (amicus curiae) and assist to ensure that the court is given the full factual picture, including if necessary by drawing the court’s attention to matters not emphasised or omitted by a claimant, as well as alerting the court to relevant law and authorities. Such argument need not be inappropriately adversarial but would save the court from the need to inform itself about the factual circumstances of the case by going back to the underlying materials and evidence before the Coroner. In future, it is suggested, neutral coroners heeding these words should have less fear that attending through counsel to assist the court on the facts, inquest procedure and coronial law will be seen as a green light to paying the costs of a judicial review should the claimant succeed.
And as a final note (if your blogger might be forgiven for being presumptuous enough to pick a minor fault with such an erudite Court’s judgment) it is a shame that the Supreme Court chose not to adopt the preferable language to be used in the coronial jurisdiction. A quick word search of the judgment tells us that there are 59 references sprinkled throughout to the inquest ‘verdict’ – a term which has not been in use in coroner’s courts for over a decade, having been abolished in the 2009 Act.
Also in three places the phrase ‘committed suicide’ is used. The most recent edition of the Equal Treatment Bench Book(at §167) encourages all judges and coroners not to use this term: it implies a criminal act and is considered to be language that may offend or stigmatise. It is not a phrase that should still be heard in any coroners court.
Footnotes
[1] HH Judge Lucraft QC sitting as a Judge of the High Court was one of the Divisional Court first instance bench
[2] R (Morahan) v West London Assistant Coroner [2021] EWHC 1603 (Admin); [2021] QB 1205; [2021] Inquest LR 126. Later upheld on appeal.
[3] There are some are categories of case (such as after self-inflicted injuries in prison) where the application of this enhanced procedural obligation is automatic, because all such deaths raise a sufficient possibility of state responsibility and the importance attached to the need for the state in these contexts to provide full accountability in relation to the death.
[4] Lopes de Sousa Fernandes v Portugal (2017) 66 EHRR 28
[5] Adopting a neutral position will generally avoid a defendant coroner being held liable for any costs of the action, in line with the suggestion by Brooke LJ in R (Davies) v Birmingham Coroner [2004] 1 WLR 2739, [2004] Inquest LR 96 at §47 and §49.