When does an inquest need to be an ‘Article 2’ inquest?

Gill Weatherill, Lauren McNally and Sofia Bradford look at a recent Supreme Court decision and what it could mean in practice for health and social care related inquests.

In the latest chapter on when an inquest needs to be an 'Article 2' inquest which covers the wider circumstances of a person's death, the Supreme Court has ruled in the case of Maguire that the inquest into the death of a care home resident who was deprived of her liberty did not need to be an 'Article 2' inquest.

What was the case about?

This case was about the inquest into the death of Jackie Maguire and, specifically, whether that inquest should have been an 'Article 2' inquest - i.e. whether there had been an arguable breach of the state’s obligations under the ‘right to life’ in Article 2 of the European Convention on Human Rights, such as to require an inquest encompassing the wider circumstances of her death rather than being limited just to the 'who, when, where, how' questions of a standard inquest.

Jackie was a 52 year old lady with Down's Syndrome who was totally dependent on others for her day-to-day care and lived in a care home. She needed round-the-clock supervision, lacked mental capacity to make decisions about her care and had a Deprivation of Liberty Safeguards standard authorisation in place.

In the weeks before her death, Jackie was suffering periodically from stomach pains.  On the day before she died, she was complaining of feeling unwell, had been vomiting and was thought to have had a seizure.  Care home staff called an ambulance but, when it arrived, Jackie refused to be taken to hospital.  Paramedics spoke to an out-of-hours GP who advised that, whilst it would be desirable for her to go to hospital, her condition was not so serious that they needed to override her wishes and force her to go. By the next morning, however, she had become acutely unwell. An ambulance was called and this time Jackie was taken to hospital, but she died later that day.  The cause of death at post mortem was found to be pneumonia and a perforated gastric ulcer leading to peritonitis.

Jackie's family argued that - given the particular circumstances of Jackie's case as a vulnerable person deprived of her liberty in a care home which had assumed responsibility for keeping her safe - there should have been an Article 2 inquest.

However, having heard the evidence, the Coroner decided this did not need to be an Article 2 inquest and the jury returned a standard inquest conclusion.  Jackie's family challenged that decision right up to the Supreme Court.

What did the Supreme Court decide?

The Supreme Court agreed with the Coroner, the High Court and the Court of Appeal that this case did not require an Article 2 inquest. 

The judgment explains that there are two types of positive obligations on the state under the Article 2 'Right to life'. These are the 'Systems Duty' (i.e. an obligation on the state to have appropriate legal regimes and administrative systems in place to provide general protection for the lives of citizens and persons in its territory) and the 'Operational Duty' (i.e. an obligation on the state to take preventative operational steps to protect a specific person or persons when the state knew or ought to have known of a real and immediate risk to life). 

The Supreme Court found on the facts of the case that there had been no arguable breach of either the 'Systems Duty' or the 'Operational Duty' and, therefore, there did not need to be an Article 2 inquest with the "expanded verdict" that would have entailed.

In outline, the Supreme Court's reasoning was as follows:

• Systems Duty - The Supreme Court found that there had been no arguable breach of the systems duty by either the care home or the various healthcare professionals involved, citing previous case law as having established that the systems duty in the context of healthcare services is relatively easily satisfied and instances of individual negligence should not be treated as indicating a breach of the systems duty. The systems in place at the care home were, the Court found, capable of being operated in a way that would ensure a proper standard of care was provided to residents, even though there may have been individual lapses in putting them into effect.  The role of the existing regulatory regime in health and social care is key here, as the judgment highlights: "…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… It is in large part for this reason that it is only in rare cases that a breach of the systems duty will be found...".

• Operational Duty - The Supreme Court also found that there had been no arguable breach of the operational duty here. In terms of the care home, the Court found that their responsibility was to ensure that Jackie could access the healthcare that is available to the population generally, which is what the care home sought to do, so there was no arguable breach here:  "Even though the individual may not be at liberty, the state is not for that reason made the guarantor of the adequacy of healthcare provided to them in all respects, with an enhanced obligation to account if things go wrong". As far as the healthcare professionals involved in the case were concerned, the Court found that, at the time it was decided not to forcibly remove Jackie to hospital, they were not on notice that her life was in danger.  The paramedics made an assessment, which was reasonable in the circumstances, that the risk to her was not so great as to make forcible removal to hospital appropriate, taking into account relevant factors such as the desirability of fostering a sense of personal autonomy by respecting her wishes where possible.

Practical impact?

This Supreme Court ruling further cements the position that - outside the 'automatic' Article 2 inquest categories such as some unnatural deaths in custody or whilst detained under the Mental Health Act - the threshold for establishing the need for an Article 2 inquest in the health and social care context is very high indeed.

While families will no doubt continue to argue that the specific facts of a case engage Article 2 based on the vulnerability of the deceased or the adequacy of the health and social care services provided, this judgment will be compelling authority for the argument that Article 2 is only engaged in exceptional cases.

Gill Weatherill is a Partner and Lauren McNally and Sofia Bradford are Associates at DAC Beachcroft.