R (on the application of Maguire) v HM Senior Coroner for Blackpool and Fylde
| Jurisdiction | England & Wales |
| Judge | Lord Burnett of Maldon CJ,Sir Ernest Ryder LJ,Nicola Davies LJ |
| Judgment Date | 10 June 2020 |
| Neutral Citation | [2020] EWCA Civ 738 |
| Year | 2020 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C1/2019/1301 |
Neutral Citation: [2020] EWCA Civ 738
Judges: Lord Burnett of Maldon CJ, Sir Ernest Ryder LJ, Nicola Davies LJ.
C1/2019/1301
Court and Reference: Court of Appeal (Civil Division);
Facts: A 52-year-old woman with Down's Syndrome lived in a care home. Her residence there was subject to standard authorisation pursuant to the Deprivation of Liberty Safeguards (DoLS) set out in Schedule A1 Mental Capacity Act 2005. She died in hospital from a natural cause: a perforated gastric ulcer, peritonitis, and pneumonia. There had been a delay in admitting her to the hospital, as she would not co-operate with paramedics. The coroner had initially agreed that there should be an inquest which satisfied the procedural obligation under Art 2 ECHR, but revisited this at the conclusion of the inquest. Although the scope of the inquest was Art 2 compliant, the jury were not invited to consider ‘in what circumstances’ the deceased had died as part of their conclusion, circumstances that might have been considered included a lack of recognition of her life-threatening condition and the lack of an advance plan to transfer her to hospital in the event she refused to co-operate with an urgent admission. The Divisional Court dismissed a judicial review against that decision: [2019] Inquest LR 143.
The appellant submitted that there were systemic and structural failures in the deceased's treatment and that there was a real and immediate risk of death, meaning there was reason to suppose the state had failed in its Art 2 operational duty to protect life. It was said that by parity of reasoning with Rabone v Pennine Care NHS Foundation Trust[2012] 2 AC 72, [2012] Inquest LR 1, an operational duty could be owed to vulnerable people in care who lacked capacity and were subject to DoLS.
Appearances: V Butler-Cole QC and N Kohn for the Appellant; J Beer QC and S Cartwright for the Respondent; C Watson for the First Interested Party (United Response); Kenneth Maguire, the Eighth Interested Party, in person; the Second to Seventh Interested Parties, Northwest Ambulance Service, Blackpool Victoria Teaching Hospital, Dr Safaraz Adam, Dr Susan Fairhead, Blackpool City Council and the Care Quality Commission, did not appear and were not represented.
The Lord Burnett of Maldon:
1. This is the judgment of the court to which all members have contributed.
2. The issue for determination in this appeal is whether the circumstances surrounding the death of Jacqueline Maguire (known as Jackie) required the coroner to allow the jury at her inquest to return an expanded conclusion in accordance with s5(2) of the Coroners and Justice Act 2009 (“the 2009 Act”). Section 5 provides:
“(1) The purpose of an investigation under this Part into a person's death is to ascertain —
(a) who the deceased was;
(b) how, when and where the deceased came by his or her death;
(c) the particulars (if any) required by the 1953 Act to be registered concerning the death.
(2) Where necessary in order to avoid a breach of any Convention rights (within the meaning of the Human Rights Act 1998 (c. 42), the purpose mentioned in subsection 1(b) is to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death.
(3) Neither the coroner conducting an investigation under this Part into a person's death nor the jury (if there is one) may express any opinion on any matter other than —
(a) the questions mentioned in subsections (1)(a) and (b) (read with subsection (2) where applicable);
(b) the particulars mentioned in subsection (1)(c).”
Section 10(2) of the 2009 Act prohibits framing a determination under s5 “in such a way as to appear to determine any question of (a) criminal liability on the part of a named person, or (b) civil liability.”
3. 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 in Lytham St Anne's which was managed by United Response. Her placement was paid for and supervised by Blackpool Council. 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. At the time of these events there were five residents living at the home. Jackie was subject to a standard authorisation granted by Blackpool Council pursuant to the Deprivation of Liberty Safeguards (“DoLS”) set out in Sched A1 to the Mental Capacity Act 2005.
4. 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.
5. 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 Art 2 of the European Convention of Human Rights (“ECHR”). The coroner initially agreed. He called evidence at the inquest between 20 and 29 June 2018 which is accepted on all sides as satisfying the evidential obligations of the procedural duty. However, before the jury was asked to perform its function under s5 of the 2009 Act at the conclusion of the inquest, the coroner revisited his earlier decision. In the light of recent authority, namely R (Parkinson) v HM Senior Coroner for Inner London South[2018] 4 WLR 106, [2018] Inquest LR 125, he 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 Art 2 ECHR, also known as the operational duty. In consequence the procedural duty did not apply. The jury's conclusion was thus limited by s5(1). It decided who the deceased was and how, when and where she came by her death. 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.
6. Death by natural causes was the inevitable starting point for the jury's conclusion in this sad case. At the inquest Jackie's family sought to amplify that conclusion with “neglect” in the technical sense of coronial law: see R v HM Coroner for North Humberside, ex p Jamieson[1995] QB 1 at 24G to 25F. They argued that the jury should be able to say that Jackie died of natural causes aggravated by neglect. The coroner refused to leave that to the jury. He was right to do so. The contrary argument, dismissed by the Divisional Court, is no longer advanced.
7. Had the coroner continued to consider that the inquest should satisfy the procedural obligation under Art 2, the jury would have been asked to express a view on the “circumstances in which [Jackie] came by her death” in accordance with s5(2) of the 2009 Act. Those circumstances might have included that Jackie's life—threatening condition was not appreciated by the several professionals who dealt with her on 21 February; that at various points there were failures in communication; and that no advance plan was in place to get her to a hospital in the event that she refused to co-operate and admission was urgent.
8. The Divisional Court (Irwin LJ, Farbey J and HHJ Lucraft QC) dismissed the claim for judicial review of the coroner's decision: [2019] EWHC 1232 (Admin). At para 44 Irwin LJ, giving the judgment of the court, said:
“We have reached the conclusion that the touchstone for state responsibility has remained constant: it is whether the circumstances of the case are such as to call a state to account: Rabone, para 19, citing Powell. In the absence of either systemic dysfunction arising from a regulatory failure or a relevant assumption of responsibility in a particular case, the state will not be held accountable under Art 2.”
9. The cases there referred to were Rabone v Pennine Care NHS Foundation Trust[2012] 2 AC 72, [2012] Inquest LR 1 (to which we shall return) and Powell v UK(2000) 30 EHRR CD362, [2000] Inquest LR 19. The court concluded that the coroner was not wrong to decide that the procedural duty did not arise on the evidence deployed at the inquest.
10. The appellant advances three grounds of appeal:
(i) Ground 1: The Divisional Court erred in concluding that the procedural obligation under Art 2 ECHR did not apply. By parity of reasoning with Rabone, the circumstances of Jackie's care dictated that the procedural obligation applied. It was not a medical case of the sort considered in Parkinson.
(ii) Ground 2: If Parkinson applied, the Divisional Court was wrong to conclude that the failure to have in place a system for admitting Jackie to hospital on the evening of 21 February 2017 – whether an advance plan drawn up by the care home and GP, or a plan on the part...
To continue reading
Request your trial
-
R (on the application of Maguire) v HM Senior Coroner for Blackpool & Fylde and another
...UKSC 20 before Lord Reed, President Lord Lloyd-Jones Lord Sales Lord Stephens Lady Rose Supreme Court Trinity Term On appeal from: [2020] EWCA Civ 738 Appellant Jenni Richards Nicola Kohn (Instructed by Bindmans LLP (London)) Respondent (His Majesty's Senior Coroner for Blackpool & Fylde) J......
-
Patricia Devall v Ministry of Justice
...the bar in cases of medical care had been acknowledged by the Court of Appeal in R (Maguire) v Blackpool and Fylde Senior Coroner [2020] EWCA Civ 738; [2021] QB 409. In that case, the claimant's daughter had Down's syndrome and lived in a residential care home. The local authority had gra......
-
Joy Dove v HM Assistant Coroner for Teesside and Hartlepool
...obligations to protect the lives of those in their care”. 54 More recently, in R (Maguire) v Blackpool and Fylde Senior Coroner [2020] EWCA Civ 738, [2021] QB 409, Lord Burnett of Maldon CJ (giving the judgment of the court) held that state responsibility is “the unifying feature” of the ......
-
Dr Cathy Gardner v Secretary of State for Health and Social Care
...by Article 3, and by extension, Article 2. 164 Mr Coppel distinguished decisions such as R (Maguire) v HM Senior Coroner for Blackpool [2021] QB 409 which were, in essence, about alleged medical negligence in care settings. This case was concerned with the Secretary of State exercising his......