Article 2 – The Operational Duty
In its most basic form, Article 2 of the ECHR imposes duties on the state to protect life. There is both a duty not to take life and positive duty to protect it, known as the Operational Duty.
An inquest will look to answer 4 questions, namely who the person who died was, where, when and how they died. In the event that Article 2 is engaged, the obligation arises to determine not only by what means the person died, but the wider question to include in what circumstances.
Although it remains that an inquest must not seek to determine civil liability or criminal liability on the part of a named person, the engagement of Article 2 often results in a wider and more intrusive investigation. Further, whilst the engagement of Article 2 does not in itself mandate the need for a jury to be empanelled, it increases the likelihood of the coroner exercising the discretion to do so.
Article 2 in healthcare
Whilst there can be no derogation from Article 2, that does not mean that there is an Operational Duty on the state in every case. There is a long history of decisions which seek to address when Article 2 is engaged in the provision of healthcare and other settings where the person was under the care of the state, for example where the death occurs in prison or the person is subject to a Deprivation of Liberty Safeguarding ("DoLS") order.
Simply because a death occurs when the person in custody or subject to a DoLS order does not in itself engage Article 2. There has to be at least an arguable breach of the state's obligation to protect life. For example, a person deprived of their liberty who dies of natural causes and who was provided with adequate treatment, would not trigger an Article 2 inquest.
Cases of simple medical negligence or poor treatment are also not going to be sufficient to engage Article 2. In order to do so, the acts or omissions must go beyond mere error or medical negligence, in so far as the health care professionals, in breach of their professional obligations, deny a patient emergency medical treatment despite being fully aware that the person’s life is at risk if that treatment is not given. The dysfunction must be systemic or structural in order to be attributable to the state authorities, and must not merely comprise individual instances where something may have gone wrong. There must also be a link between the dysfunction complained of and the harm which the patient sustained and this must have resulted from the failure of the state to meet its obligations to provide a regulatory framework.
The Case of Maguire
It is the determination of when the Operational Duty arises in the provision of healthcare that has been the subject of a number of recent decisions. The case of Maguire addresses this in the context of a care home setting.
In summary, the case concerns the death of Jaqueline Maguire, a vulnerable adult woman with Down's Syndrome and learning difficulties. She lacked capacity and was subject to a DoLS order. She had resided at a residential care home funded by the local council for around 15 years.
The most recent capacity assessment recorded that she was totally dependent on staff for her day to day care and the home were responsible for her safety, welfare and ensuring that she had appropriate access to medical services.
Jacqueline became ill over the two days before her death. Calls to 111 resulted in advice to consult a GP over the telephone, but continuing concerns later in the evening led to an ambulance being called. The paramedics wished to transfer her to hospital but she would not co-operate. She had a history of refusing medical treatment in the past but this was not conveyed to the paramedics nor was there a plan in place to deal with this situation. The paramedics concluded that manhandling her might cause injury. An out of hours GP was telephoned who advised that attempts should be made to persuade Jaqueline to go to hospital but that if she refused, she should stay in the care home and be monitored overnight. The following morning her condition was worse. An ambulance attended and she was taken to hospital. She had a severe infection. She died later that day.
The family had argued that the circumstances engaged the Operational Duty and obliged the Coroner to hold an inquest that satisfied Article 2.
The Court of Appeal's judgement
The Court of Appeal held that the Operational Duty under Article 2 is not owed in all circumstances to vulnerable people in care homes. The question whether this arises depends on the particular circumstances of each case.
In addressing the grounds of appeal, the Court did not find that the Operational Duty under Article 2 was engaged in the particular circumstances. A clear distinction was drawn between those who are in a care facility because they cannot look after themselves and those who are in care for a specific reason, for example to receive medical treatment or guard against the risk of suicide. The Court held that the Operational Duty might arise in the latter, whether the person was in care voluntarily or under a DoLS order. The position was, however, different where, as in the case of Maguire, the provision of treatment was obtained in much the same way as if the person were to be living at home with family, from the NHS through their GP or an ambulance with no foresight of a particular threat to life.
The Operational Duty arose where there was state responsibility, rather than an individual judgement or action. Even when a number of cumulative errors or failings occurred, that did not make the state responsible. The Court commented that the state needs to have been aware of the appalling life threatening conditions in residential care homes for which it is responsible and have unreasonably put the lives of those in it at risk, or have been aware of the shortcomings, through regulatory inspections, and not acted.
Finally, the Court of Appeal did not find that the criticism of the paramedics and out of hours GP nor the making of plans in individual cases and the detail of guidance given to paramedics met the cumulative circumstances required to give rise to the Operational Duty (as detailed above).
What does this mean for care homes?
The decision in Maguire might be seen as useful, in that it further limits the application of the Operational Duty and the requirement for an Article 2 inquest following a death in a care home. Although the true impact of the decision remains to be seen, there are potential implications for both care home providers and regulators.
It is clear that Article 2 is not engaged even where there are multiple failings and shortcomings identified in the provision of medical care. However, the judgement could be seen as placing more onus on the regulators by holding that Article 2 is engaged in circumstances where it is aware of conditions in state run care homes or of the shortcomings through regulatory inspections.
The result of this could be an increased focus by regulators, such as the CQC, HSE and local authorities, on the remedial actions undertaken following the identification of any shortcomings during an inspection. Given the risk the judgement potentially places on such bodies, care home provides may find themselves under increased scrutiny. Local authorities may also be more cautious about placing local authority funded residents in homes that have identified shortcomings until they are shown to have been remedied.
When it comes to dealing with inquests, care home providers may see an increased demand for information regarding their previous regulatory inspections and for example, enquiries into whether any previous reports to prevent future deaths have been issued by the coroner, with a view to establishing knowledge of the alleged shortcomings on the state. The CQC might also feel more inclined to register itself as an interested party at inquests involving a care home.
In terms of the scope of the inquest, the engagement of Article 2 has often been seen as a way to widen the scope to include the broader circumstances of how someone came by their death. It is noted within the judgement of Maguire that the Court of Appeal commented that the engagement of Article 2 only effects the product of the Inquest, so whether the conclusion addressed the broader question of how and in what circumstances someone came by their death, not the content of the investigation. The scope of an inquest ultimately remains a matter for the Coroner and Maguire does not preclude a wider investigation being undertaken and, for example, the issuing of a report to prevent future deaths.
Overall, whilst the decision in Maguire narrows the application of Article 2, it does not necessarily narrow the potential scope of the investigation and it may result in an increased focus by regulators on care providers who are assessed as falling short of requirements.
Post script:- It will be interesting to see how this Judgement is applied in the forthcoming Covid-19 inquests relating to care homes. The role of the Government and what they knew about the impact of the pandemic on care homes may well become a significant issue for a Coroner in determining whether the Operational Duty applies and Article 2 is engaged.
If you have any questions or would like to get in touch, please contact Simon Belfield or Andrew Barton