Deaths in care homes: does the Human Rights Act apply if a patient has a DoLS authorisation?

Might the Human Rights Act apply where patients are discharged into care homes with ‘Covid-19’? What did the state know or ought to have known?

R (Maguire) v HM Senior Coroner for Blackpool & Flyde and others

Key point

The state might breach its operational duty in two "very exceptional circumstances", namely "where it knowingly put an individual's life in danger by denying them access to life-saving emergency treatment or where a systemic dysfunction resulted in a patient being denied access to life-saving treatment in circumstances where the authorities knew of the risk but failed to take preventative measures."

The operational duty did not apply to the provision of medical treatment in a care home.

Background

Jacqueline (Jackie) Maguire had lived in a residential care home for more than 20 years requiring one-to-one support. She was subject to a standard authorisation and her placement was funded by Blackpool council. By the time of her death aged 52, she suffered limited mobility, needing a wheelchair to move around outside. Jackie died in hospital on 22 February 2017.

Jackie fell ill over the two days before her death. She developed a sore throat and a raised temperature accompanied by vomiting and diarrhoea. Following a call to NHS 111, her carers consulted Jackie’s GP over the telephone but ongoing concerns regarding her condition led to an ambulance being called. The ambulance crew wanted to take Jackie to hospital but she refused to co-operate (the paramedics were unaware that Jackie had Down’s syndrome). She therefore remained at the care home overnight but the next day her condition had worsened. She was taken by ambulance to hospital where she died of a cardiac arrest later that day. A post-mortem concluded that her death was a result of a perforated gastric ulcer with peritonitis and pneumonia.

The coroner’s decision

An inquest with a jury was held and it proceeded on the basis that Article 2 was engaged. However at the conclusion of the inquest, the coroner revisited his approach in light of R (Parkinson) v HM Senior Coroner for Inner London and 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 (the operational duty) – and therefore, the Article 2 procedural duty did not apply.

Simply put: the coroner found that the allegations against the carers and healthcare professionals amounted to individual acts of negligence and that they did not engage Article 2.

The jury’s conclusion was limited to, ascertaining how, when and where Jackie came by her death. The jury concluded natural causes. A short narrative description of the events leading up to her death were recorded.

The Divisional Court’s view

The coroner’s decision was challenged by judicial review.

Had the coroner continued to consider that the inquest satisfied the procedural obligation under Article 2, then the jury would have been asked to express a view on the “circumstances in which [Jackie] came to her death”.

Those circumstances may have included that:

• Jackie’s life-threatening condition was not appreciated by the several professionals who dealt with her;
• there were a number of failures in communication; and
• no advance plan was in place to get Jackie to hospital in the event she refused to co-operate and admission was urgent.

The claim for judicial review was dismissed.

The Court of Appeal: the grounds

Jackie’s family appealed.

The thrust of the appeal concerned the coroner’s approach to Article 2 that the procedural obligation did not apply. It was argued the circumstances of Jackie's care dictated the procedural obligation applied.

It was also argued it was wrong to conclude that the failure to have in place a system for admitting Jackie to hospital on 21 February 2017, did not amount to system failure and therefore did not engage the Article 2 obligations.

Court of Appeal decision

The appeal was dismissed concluding that the operational duty under Article 2 was not engaged.

The underlying argument advanced by Jackie’s family was that of the “undeniable vulnerability of an individual in Jackie’s position, coupled with the fact of a DoLS authorisation dictating that she was owed the operational duty under article 2 ECHR with the result that the procedural obligation 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”.

However, the court felt it was important to focus on the scope of any such duty and why it might be owed. It identified that the Article 2 substantive obligation is tailored to harms from which the authorities have a responsibility to protect those under its care. 

In the court’s judgment, the coroner was right to conclude, 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. Jackie’s circumstances were not analogous with a psychiatric patient who is in hospital to guard against the risk of suicide. She was in a care home in which she could be looked after by carers – she was not there for medical treatment. The court confirmed that Jackie’s position would not have been different had she been able to continue to live with her family with social services input and been subject to an authorisation from the Court of Protection in respect of her deprivation of liberty whilst in their care.

The court said it was unnecessary to decide whether the medics knew or ought to have known that Jackie faced a real and immediate risk of death and did all that they reasonably should have done to prevent the risk from materialising . Answering that question, the relatively “light touch approach” (compared with those detained by the state in prison or involuntary psychiatric patients) as set out by the Strasbourg case in Fernandez de Oliveira would apply.

Turning to the second ground of appeal, Jackie’s family sought to argue that even if the case was considered as a Parkinson medical case, then it was one which fell within the exceptional category of cases acknowledged within the Parkinson decision. The state might breach its operational duty in two "very exceptional circumstances", namely "where it knowingly put an individual's life in danger by denying them access to life-saving emergency treatment or where a systemic dysfunction resulted in a patient being denied access to life-saving treatment in circumstances where the authorities knew of the risk but failed to take preventative measures." In short, the court did not accept that Jackie’s case fell within those “very exceptional circumstances” which can give rise to a breach of the operational duty under Article 2 in a medical case defined in Fernandes.

As to the contention that the coroner should have taken into account the issue of premature deaths of people with learning disabilities, the court said this did not assist in enabling the court to determine that this matter came within those “very exceptional circumstances”.

Comment

This decision demonstrates that the bar is high for establishing Article 2 grounds. It also raises potential questions as to the possible engagement of Article 2 following deaths from COVID-19 contracted in local authority care homes or where patients have been discharged from hospitals to care homes with suspected or confirmed cases of the virus.