I was recently instructed to advise on whether a care home had failed in their duties towards a resident who fell ill and subsequently died at hospital. The questions were – Did the circumstances surrounding the death of the resident who lacked capacity engage the state’s obligation to protect life under Article 2 of the European Convention on Human Rights? Was the coroner therefore obliged to direct the jury at the inquest to arrive at an expanded verdict in accordance with section 5(2) of the Coroners and Justices Act 2009?
These questions were discussed in R (Maguire) v HM Senior Coroner for Blackpool and Fylde (2023) UKSC 20. A resident in a care home was there in circumstances which amounted to deprivation of liberty, authorized by Schedule A1 Mental Capacity Act 2005. J had Down's syndrome, learning disabilities and behavioural difficulties. She lacked capacity to make decisions about her living arrangements, healthcare and welfare. J fell ill at the home, but refused to go with paramedics to the hospital. The GP advised and J was allowed to remain at the home overnight. J deteriorated and died in hospital the next day as a result of a perforated gastric ulcer, peritonitis and pneumonia.
The family argued a breach of the systems and operational safeguarding duties on the part of care home staff and healthcare staff so as to trigger an Article 2 enhanced investigation. They argued the requirement had arisen through the deprivation of J's liberty, her vulnerability and the state's assumption of responsibility for her care.
The coroner held that there had been no failure by the care home or the ambulance service to have appropriate systems in place. The coroner decided that the enhanced procedural obligation was not engaged if the allegation amounted to no more than medical negligence. The jury decided that J had died of natural causes. The family appealed the coroner’s decision. They argued that there had been a systemic failure and a violation of the state's operational duty to protect life, in that there had been a failure to take steps to prevent a real and immediate risk to life, of which the authorities should have been aware.
While the paramedics had considered it advisable for J to go to hospital, they had not at that time considered that her life would be in danger if she did not go. When assessing whether an Osman-style operational duty arose requiring her to be taken to hospital, other factors had to be considered. It was important that J had a good relationship with her carers. It meant that her decisions should be respected. Where a patient refused to go to hospital, it was not simply a matter of using force. The use of force has to be proportionate to the risk faced by the patient. The healthcare professionals had not been on notice that J's life was in danger so as to engage the operational duty.
The Supreme Court dismissed the appeal and decided:
The decision demonstrated that not every failure by a care home or healthcare provider will amount to a breach of systems duty or operational duty, even though it might amount to clinical negligence. The decision helps families understand what they can and cannot achieve from an inquest where alleged failures in care arise.