This article originally appeared in Issue 2 (July 2019).
The High Court has re-affirmed that, in most cases, inquests involving allegations of medical failings do not engage the State’s positive obligations under Article 2 of the European Convention on Human Rights.
Jackie Maguire had Down’s syndrome, moderate learning difficulties, and severely compromised cognitive and communication abilities. On 22 February 2017, she tragically died from a perforated ulcer at the age of 52, having developed symptoms starting with a sore throat around one week previously. For around 20 years prior she had been living in care and, at the time of her death, following a capacity assessment under sections 1 – 3 of the Mental Capacity Act 2005, she was being maintained by Blackpool City Council in a care home from where she was not allowed to leave without supervision.
An inquest hearing before the Senior Coroner for Blackpool and Fylde proceeded on the basis that the state’s positive obligations to protect life under Article 2 of the European Convention on Human Rights (“ECHR”) were engaged, and it was accordingly an ‘Article 2 inquest’. However, at the conclusion of the inquest and prior to considering his summing up and the matters to be left to the jury, the Coroner decided that, in light of the High Court decision in R (Parkinson) v Kent Senior Coroner  EWHC 1501 (Admin) (see further below), Article 2 was not, in fact, engaged based on his assessment of the evidence he had heard. He also decided that it would not be appropriate to leave the potential conclusion of ‘neglect’ for the jury’s consideration. Those two decisions were challenged by Jackie’s family in judicial review proceedings. This article focuses on the Coroner’s decision regarding the engagement of Article 2.
In the inquest hearing itself, the Coroner had heard evidence of what might be characterised as a series of deficiencies (or at least missed opportunities) to assess and provide treatment to Jackie as her condition deteriorated, including omissions to call a GP when first requested by Jackie, decisions not to take Jackie to hospital, and failures by GPs who were consulted to elicit and act upon all pertinent information about her condition. The question for the court was whether such failings engaged Article 2.
Article 2 obligations
At paragraphs 30 – 49 of the judgment, the court gave a useful and succinct summary of the structure of the substantive Article 2 obligations imposed on the state, and how and when they are engaged. In summary, under Article 2 there is:
- A substantive negative obligation not to take life unlawfully;
- A substantive positive ‘framework’ obligation to have in place effective criminal and other legal provisions together with enforcement machinery for the prevention and punishment of crime and the protection of life; and
- A substantive positive ‘operational’ obligation to take steps to protect people where the state knows or ought to know that someone is at risk at real and immediate risk of death.
As the court explained, the ‘operational’ obligation originally arose in the criminal context (i.e. a need to protect people at real and immediate risk of having fatal crimes perpetrated against them), but it has extended beyond that point to arise whenever someone is in such a dependent position that the state can be said to have assumed responsibility for protecting that person’s life. Template examples of this situation are where someone is in prison or detained in a mental health facility.
Outside of those cases where there has been a sufficient assumption of responsibility and an arguable failure to take steps to protect people who are at ‘real and immediate risk of death’, the court emphasised that, in cases of alleged medical failings, Article 2 would not be engaged save for a systemic failure.
Parkinson and Lopes de Sousa Fernandes
This was held to flow on from Parkinson, which involved allegations that there had been failings in the treatment of an elderly patient presenting at a hospital’s Accident & Emergency department, see :
“The Coroner in the present case applied the guidance in Parkinson which held, at paragraph 87, that where a state has made provision for securing high professional standards among health professionals and the protection of the lives of patients, matters such as errors of professional judgment or negligent coordination among health professionals in the treatment of a particular patient will not be sufficient to engage article 2. In reaching this conclusion, the court in Parkinson reflected the reasoning of earlier cases such as Powell v United Kingdom (2000) 30 EHRR CD 362. Parkinson is now authority for the proposition that a medical case (in which negligent medical treatment may incur liability in tort) will not generally engage article 2.”
Parkinson itself drew heavily from a recent judgment of the ECtHR Grand Chamber in Lopes de Sousa Fernandes v Portugal (app. no. 56080/13), in which the court restated and clarified its jurisprudence in relation to the invocation of Article 2 in medical cases. The key principles are summarised at  to  of the judgment in Parkinson, the essence of which is that, outside of circumstances in which the operational Article 2 obligation may arise, a breach of Article 2 is only arguably made out where there has been a denial of emergency life-saving treatment, pursuant to some kind of systemic dysfunction or failing.
Returning to the Maguire, the court determined as follows at :
“Applying these principles to the present case, we have carefully considered the chain of events in the days before Jackie’s death: Dr Adam’s failure to make a home visit; Dr Fairhead’s failure to triage properly or to elicit a full history from carers; the paucity of advice from NHS111; the difficulties experienced by Ms Ayres and her colleague who had not been notified that Jackie had Down’s syndrome and who found themselves unable to take Jackie to hospital. It may fall to others to decide whether any failures give rise to individual civil liability or professional disciplinary proceedings. They are not, however, capable of demonstrating systemic failure or dysfunction. Such failings as there may have been were attributable to individual actions and do not require the state to be called to account.”
Similarly, the court did not interfere with the Coroner’s conclusion that the operational Article 2 obligation arose on the facts of the case, finding that he had made no error of law in that regard.
The cases of Fernandes, Parkinson and Maguire mark a “reining in” of Article 2 in the medical context, and are likely to feature prominently in legal submissions to Coroners in the coming months, particularly by clinicians and hospitals who seek to resist inquest proceedings on the more detailed and extensive Article 2 footing.
A different version of this article has previously appeared on the UK Human Rights Blog.