Maguire, R (On the Application Of) v United Respons & Ors [2020] EWCA Civ 738 (10 June 2020)

The issue for determination in this appeal is whether the circumstances surrounding the death of Jacqueline Maguire (“Jackie”) required the coroner to allow the jury at her inquest to return an expanded conclusion in accordance with section 5(2) of the Coroners and Justice Act 2009 [ie ECHR Art 2 inquiry] [2]

Jackie was a woman born on 28 April 1964. She had Down’s Syndrome, in addition to learning disabilities and behavioural difficulties, as well as some physical limitations. Since 1993 she had lived in a residential care home…The home provided accommodation for adults with learning disabilities who required personal care. It was not a nursing home. Its staff had neither medical nor nursing training… Jackie was subject to a standard authorisation granted by Blackpool Council pursuant to the Deprivation of Liberty Safeguards set out in Schedule A1 to the Mental Capacity Act 2005. [3]

Jackie died in hospital on 22 February 2017. The cause of her death was: (i) perforated gastric ulcer and peritonitis; and (ii) pneumonia. Jackie became ill over the two days before her death. On 21 February a call to NHS 111 resulted in advice to consult a general practitioner. The consultation took place over the telephone but continuing concerns later in the evening led to an ambulance being called. The paramedics wished to transfer Jackie to hospital but she would not co-operate. They concluded that manhandling her might cause injury. An out of hours GP was telephoned who advised that attempts should be made to persuade Jackie to go to hospital but that if she refused, she should stay in the care home and be monitored overnight. That was what happened. The following morning Jackie’s condition was worse. An ambulance attended and she was taken to hospital. She was found to be severely dehydrated with kidney failure and metabolic acidosis. She had severe infection. She died following a cardiac arrest later that day. [4]

Before the coroner, Jackie’s family argued that the circumstances of the death dictated that there should be an inquest which satisfied the procedural obligation under article 2 of the European Convention of Human Rights (“ECHR”)… [coroner] decided that the evidence did not suggest that Jackie’s death might have resulted from a violation of the positive obligation to protect life imposed by article 2 ECHR, also known as the operational duty. In consequence the procedural duty did not apply. The jury’s conclusion… In answer to the question “how did Jackie come by her death?”, the jury concluded that her death came about by natural causes. The jury also produced a short narrative description of the events of 21 and 22 February 2017. [5]

Death by natural causes was the inevitable starting point for the jury’s conclusion in this sad case. [6]

The [Divisional C]ourt concluded that the coroner was not wrong to decide that the procedural duty did not arise on the evidence deployed at the inquest. [9]

The underlying argument of the appellant is 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. [70]

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. [74]

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 [100]

the collective judgement of the professionals was that Jackie was not in danger on the evening of 21 February 2017 and could be kept under observation at the home, even though it was preferable that she went to hospital. Moreover, we do not accept that this is a case which raises “systemic or structural dysfunction in [medical] services” which resulted in Jackie being denied life-saving treatment. [105]

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. [106]

…we dismiss the appeal. [107]