Jason Beer KC appears in important Supreme Court Article 2 case

21 June 2023

The Supreme Court today handed down its judgment in Maguire v His Majesty’s Senior Coroner for Blackpool & Fylde – it is an important decision concerning the reach of Article 2 ECHR in relation to those who are vulnerable and lack the mental capacity to make decisions regarding their care and treatment, who are dependent on others to act in their best interests.

Jacqueline Maguire, known as Jackie, was a lady with Down’s Syndrome who lived in a residential placement for adults with learning difficulties in Blackpool. She was deprived of her liberty pursuant to a Standard Authorisation made under the Mental Capacity Act 2005.

Jackie died on 22 February 2017. In the weeks beforehand, she suffered symptoms including stomach pains, collapsing, and a sore throat. On the evening before her death, she repeatedly lost consciousness and collapsed. An ambulance crew attended but left after Jackie refused to attend hospital. A GP advised that Jackie attend hospital but that if she refused she could stay at her care home. The next morning Jackie’s condition had worsened, and she again collapsed. She was admitted to hospital, where tests showed her to be severely dehydrated and suffering from acute kidney injury. She later suffered a cardiac arrest from which she could not be resuscitated. A postmortem later recorded her cause of death as a perforated gastric ulcer and pneumonia.

An inquest into Jackie’s death took place in 2018. At the conclusion the coroner decided that Jackie’s death did not engage the state’s positive obligation to protect life under Article 2 of the European Convention on Human Rights. As a result, the jury was not required to consider the circumstances in which Jackie came by her death, and resultantly gave only a short narrative conclusion that Jackie’s death resulted from natural causes.

Jackie’s mother Muriel brought judicial review proceedings in respect of the coroner’s decision regarding Article 2. The High Court and Court of Appeal dismissed her claim.

Dismissing the appeal to the Supreme Court, Lord Sales (with whom all other members of the Court agreed) synthesised and explained a large number of domestic and European authorities concerning the substantive positive obligations under Article 2 in the form of the systems duty and the operational duty; the variants of the implied procedural obligation under Article 2; and their application to deaths which concern the (non-) provision of healthcare.

The Supreme Court upheld held the Coroner’s decision that neither the systems or the operational duty was, at the conclusion of the evidence, arguably breached – the Coroner had acted neither irrationally nor erred in law, holding:

An individual such as Jackie is placed in a care home so that they can be provided with a substitute form of familial care when they are no longer able to look after themselves and their family cannot cope either. There may well be a deprivation of liberty according to the standards laid down under article 5 of the Convention, but this is for their own benefit. They are in a situation very different from a prisoner … In a care home or a nursing home, loss of liberty is an incidental feature of the vulnerability of the individual resident, and it is the vulnerability and the assumption of responsibility of care in the light of it which is the fundamental basis for the duties owed under article 2. The extent to which an individual may be vulnerable and requiring of protection is on a continuum which is different from the distinction between loss of liberty and freedom for the purposes of article 5 … many people, young and old, share Jackie’s characteristics of being vulnerable and unable to care for themselves, with increasing numbers of elderly adults being in a similar position as a result of diminished mental faculties or dementia; they may be accommodated in nursing homes or care homes or with their family, and substantial numbers will be subject to the DoLS regime to authorise stopping them from leaving, in the interest of keeping them safe. The stronger analogy in the case of a care home is with a situation in which the state has authorised loss of liberty at a family home in the interests of the individual, rather than with imprisonment. It is appropriate that the duties applicable under article 2 should reflect this different context.

Additionally, and of particular interest to coroners, will be the Court’s helpful comments at [117] that in cases where the coroner is a defendant to a claim for judicial review and wishes to adopt a neutral position in line with the suggestion by Brooke LJ in R (Davies) v Birmingham Coroner [2004] 1 WLR 2739, paras 47 and 49, counsel for the coroner may properly act as an amicus curiae (advocate to the court) 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 it to relevant law and authorities.

Jason Beer KC acts in large inquests and inquiries, and in the public law proceedings that arise from them.

 


Authors

Jason Beer KC

Call 1992 | Silk 2011

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