Inquests, care home residents, and medical negligence: Court of Appeal determines the limits of Article 2 in important new decision
The Court of Appeal today handed down a judgment that analyses the extensive ECtHR and domestic jurisprudence on the extent of the positive obligations imposed by Art.2 ECHR in the context of a person subject to a DoLS who may have died following errors in medical care and treatment. The decision is likely to be a very significant one for coroners and practitioners in coronial, mental health and healthcare law (NHS Figures suggest that about 200,000 applications are made for DoLS per year, about half of which are granted), especially in the light of the significant number of deaths of those in care homes in the course of the Covid-19 pandemic.
The facts were that JM died in hospital of a perforated ulcer at the age of 52. She had Down’s syndrome and moderate learning difficulties. By the time of her death, she suffered limited mobility, needing a wheelchair to move around outside. She had lived for more than 20 years in a care home. She became ill in the care home on 21st February 2017 and was taken to hospital on 22nd February 2017, where she sadly died. A post-mortem concluded that her death was as a result of a perforated gastric ulcer with peritonitis and pneumonia. HM Senior Coroner for Blackpool and Fylde opened an inquest with a jury.
Proceedings for judicial review brought by JM’s mother sought to challenge two decisions made by the Coroner, namely his decisions after all of the evidence had been heard in the inquest: (1) that Art.2 ECHR was not engaged (2) not to leave a determination of neglect to the jury. The jury returned a conclusion that JM’s death came about by natural causes (and produced a short narrative description of the events of 21st and 22nd February 2017).
On 15th May 2019 the Divisional Court (Irwin LJ; Farbey J; and the Chief Coroner, sitting as a Judge of the High Court) dismissed the claim for judicial review: see R (Maguire) v HM Senior Coroner for Blackpool & Fylde  EWHC 1232 (Admin): see here.
JM’s mother appealed to the Court of Appeal against the Divisional Court’s decision insofar as it related to the engagement of Art.2. Given the importance of the appeal, the hearing was live streamed by the Court of Appeal: see here.
The Court of Appeal (Lord Burnett, Lord Chief Justice; Sir Earnest Ryder, Senior President of Tribunals; and Nichola Davies LJ) dismissed the appeal. The Court analysed the decisions of the ECtHR in Lopes de Sousa Fernandez v Portugal (2018) 66 EHRR 28, Fernandez de Oliveira v Portugal (2019) 69 EHRR 8, and Dumpe v Latvia (App. No. 71506/13) and the decisions of the domestic courts in Savage v South Essex Partnership NHS Trust  AC 681, Rabone v Pennine Health Care NHS Trust  2 AC 72, R (Tyrell) v HM Coroner for County Durham and Darlington  EWHC 1892, and R (Parkinson) v HM Senior Coroner for Inner London South  4 WLR 106. It held that: the fact that an operational duty to protect life exists does not lead to the conclusion that for all purposes the death of a person owed that duty is to be judged by article 2 standards: instead it is necessary to determine the nature and scope of any operational duty owed; the cases did not support the suggestion that for all purposes an operational duty is owed to those in a vulnerable position in care homes, which then spawns the distinct procedural obligation (with all its components) in the event of a death which follows either alleged failures or inadequate interventions by medical professionals; and there was no reason to believe that the “very exceptional circumstances” which can give rise to a breach of the operational duty under article 2 in a medical case defined in Lopes de Sousa might be in play.
Accordingly, the coroner was right to conclude that, on the evidence adduced at the inquest, there was no basis for believing that JM’s death was the result of a breach of the operational duty of the State to protect life.