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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Maguire, R (on the opplication of) v HM Senior Coroner for Blackpool & Fylde & Ors  EWCA Civ 738 (10 June 2020)
Cite as:  3 WLR 1268,  2 All ER 93,  COPLR 654, (2020) 176 BMLR 50,  QB 409,  EWCA Civ 738,  Med LR 331,  Inquest LR 83,  WLR(D) 333
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ON APPEAL FROM THE QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT, DIVISIONAL COURT
THE RT HON LORD JUSTICE IRWIN, THE HON MRS JUSTICE FARBEY & HIS HONOUR JUDGE LUCRAFT QC (SITTING AS A JUDGE OF THE HIGH COURT)
Strand, London, WC2A 2LL
B e f o r e :
LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE RT HON SIR ERNEST RYDER
SENIOR PRESIDENT OF TRIBUNALS
THE RT HON LADY JUSTICE NICOLA DAVIES DBE
| THE QUEEN on the application of MURIEL MAGUIRE
|- and -
|HER MAJESTY'S SENIOR CORONER FOR BLACKPOOL & FYLDE
- and -
(1) UNITED RESPONSE
(2) NORTHWEST AMBULANCE SERVICE
(3) BLACKPOOL VICTORIA TEACHING HOSPITAL
(4) DR SAFARAZ ADAM
(5) DR SUSAN FAIRHEAD
(6) BLACKPOOL CITY COUNCIL
(7) CARE QUALITY COMMISSION
(8) KENNETH MAGUIRE
Jason Beer QC and Sophie Cartwright (instructed by Corporate Legal Services, Blackpool Council) for the Respondent
Claire Watson (instructed by DAC Beachcroft LLP) for the First Interested Parties
The Eighth Interested Party appeared in person
The Second to Seventh Interested Parties did not appear and were not represented
Hearing dates: 4 & 5 February 2020
Crown Copyright ©
The Lord Burnett of Maldon:
"(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 section 5 "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."
"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 article 2."
Grounds of Appeal
(i) Ground 1: The Divisional Court erred in concluding that the procedural obligation under article 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 of the ambulance service faced with a patient without capacity in need of, but objecting to, hospital admission – did not amount to a systemic failure.
(iii) Ground 3: The Divisional Court erred in failing to take account of the wider context of premature deaths of people with learning disabilities (such information being known to the Senior Coroner at the time even if not in evidence before him) but in any event being relevant to the application of article 2 in these circumstances.
The Procedural Obligation under Article 2 ECHR
"a procedural obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of … the substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way implicated."
In para. 4 Lord Bingham identified three questions for consideration:
"(1) What, if anything, does the Convention require (by way of verdict, judgment findings or recommendations) of a properly conducted official investigation into a death involving, or possibly involving, a violation of article 2?
(2) Does the regime for holding inquests established by the Coroners Act 1988 and the Coroners Rules 1984, as hitherto understood and followed in England and Wales, meet those requirements of the Convention?
(3) If not, can the current regime governing the conduct of inquests in England and Wales be revised so as to do so, and if so how?"
"embodies a judgmental conclusion of a factual nature, directly relating to the circumstances of the death. It does not identify any individual nor does it address any issue of criminal or civil liability. It does not therefore infringe [the statutory prohibition]."
Lopes de Sousa
"Rather the distinction between systemic failure and ordinary negligence cases is one which is also to be found in the domestic cases law, for example in Savage and Rabone."
"The Court would emphasise at the outset that different considerations arise in certain other contexts, in particular with regard to medical treatment of persons deprived of their liberty or of particularly vulnerable persons under the care of the state, where the state has direct responsibility for the welfare of these individuals. Such circumstances are not in issue in the present case."
Fernandez de Oliveira
"In a series of cases where the risk derived not from the criminal acts of a third party, but from self-harm by a detained person, the Court found that the positive obligation arose where the authorities knew or ought to have known that the person posed a real and immediate risk of suicide. Where the Court found that the authorities knew or ought to have known of the risk it proceeded to analyse whether the authorities did all that could reasonably have been expected of them to prevent that risk from materialising. Thus, the Court assesses whether, looking at all the circumstances of a given case, the risk in question had been both real and immediate."
"Where the authorities decide to place and keep in detention a person suffering from a mental illness, they should demonstrate special care in guaranteeing such conditions as corresponds to the person's special needs resulting from his or her disability. The same applies to persons who are placed involuntarily in psychiatric institutions." (para. 113)
"the specific measures required will depend on the particular circumstances of the case, and those specific circumstances will often differ depending on whether the patient is voluntarily or involuntarily hospitalised. Therefore, this duty, namely to take reasonable measures to prevent a person from self-harm, exists with respect to both categories of patient. However, the Court considers that in the case of patients who are hospitalised following a judicial order, and therefore involuntarily, the Court, in its own assessment, may apply a stricter standard of scrutiny." (para. 24)
Dumpe v. Latvia (App. No. 71506/13)
"In contrast, here the applicant argued that her son, who suffered from several serious illnesses, died owing to the social care home's, in particular its medical staff's failure to provide him adequate medical care when his health condition deteriorated. Accordingly, the Court considers that the applicant's complaint pertains to medical negligence in the care provided to her son."
Rabone v. Pennine Health Care NHS Trust
"[Miss Rabone] was admitted to hospital precisely because of the risk that she would take her own life. The purpose of the admission was both to prevent that happening and to bring about an improvement in her mental health such that she no longer posed a risk to herself. . .. Her mental disorder meant that she might well lack the capacity to make an autonomous decision to take her own life. Although she was an informal patient, the hospital could at any time have prevented her leaving. … The experts are agreed that it would have been appropriate to detain her under the 1983 Act if she had intended to leave the hospital without medical approval …
The analogy with a patient detained under the Mental Health Act is much closer than the analogy with a patient admitted for treatment of a physical illness or injury." (paras 105 and 106)"
"The applicant complained that her transfer from her existing care home to another care home would reduce her life expectancy. The court held, at para 88, that a badly managed transfer of elderly residents of a care home could well have a negative impact on their life expectancy as a result of the general frailty and resistance of change of older people. It followed that article 2 was "applicable". The operational duty was, therefore, capable of being owed in such circumstances, but for various reasons, the claim failed on the facts."
Medical Deaths in Custody
"It would not arise in any case where it is established that the death arose from natural causes and there is no reason to suppose that the state failed to protect the life of the prisoner in question. The Strasbourg authorities … suggest that in the context of a natural death in custody the responsibility of the state for the purposes of the duty to protect life will arise only if there has been a failure to provide timely and appropriate medical care to a detainee obviously in need of it. The Osman test is applied in the context of the provision of medical care to those dependent upon the detaining authority to provide it." (para. 33).
Deprivation of Liberty under the Mental Capacity Act 2005
"It therefore became necessary for this country to introduce some ... machinery for the many thousands of mentally incapacitated people who are regularly deprived of their liberty in hospitals, care homes and elsewhere."
"12. Dr Ali concluded that, as a consequence of her learning disabilities, Jackie lacked capacity to make her own decisions about whether she should be accommodated in the care home for the purpose of receiving care and treatment. He noted that Jackie was 'totally dependent' on staff for her day-to-day care. He described her as 'a vulnerable adult with no insight'. In his opinion, Jackie fell to be considered for deprivation of liberty safeguards in her best interests.
13. Mr Davies Fryar also concluded that it was in Jackie's best interests to be deprived of her liberty for the purpose of being given care and treatment. His report noted that staff in the care home made sure that she had appropriate and timely access to her GP and other NHS services. The home was said to maintain Jackie's safety and welfare which she would not otherwise be able to maintain for herself.
14. On the basis of these two reports, Blackpool City Council had on 7 April 2016 renewed its decision to deprive Jackie of her liberty, imposing deprivation of liberty safeguards (DOLS) on a one-year standard authorisation under section 4 and Schedule A1 of the 2005 Act. It appears that United Response had put in place a care plan (dated April 2016). Like the Coroner, we were supplied only with an incomplete copy."
Submissions in Outline
"...in these circumstances, it is all the more evident that by deciding to place Mr Câmpeanu in the PMH, notwithstanding his already heightened state of vulnerability, the domestic authorities unreasonably put his life in danger. The continuous failure of the medical staff to provide Mr Câmpeanu with appropriate care and treatment was yet another factor leading to his untimely death.
The foregoing considerations are sufficient to enable the court to conclude that the domestic authorities have failed to comply with the substantive requirements of Article 2 of the Convention, by not providing the requisite standard of protection for Mr Câmpeanu's life." (paras 143 and 144)
The Facts in More Detail
"was part of series of interlinked failures arising out of the absence of any clear structure in which information and case management regarding an incapacitous, vulnerable and desperately ill woman could be shared, and appropriate decisions made on her behalf and in her best interests."
Ms Butler-Cole submits that even if this is a medical case (Lopes de Sousa), it fell within the exceptions identified by the Strasbourg Court (see para. 25 above).
Conclusions on Grounds 1 and 3
"In determining the present question, the House is required by section 2(1) of the Human Rights Act 1998 to take into account any relevant Strasbourg case law. While such case law is not strictly binding, it has been held that courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court: R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions  2 AC 295, paragraph 26. This reflects the fact that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court. From this it follows that a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law. … It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less."
Conclusion on Ground 2
"... the dysfunction at issue must be objectively and genuinely identifiable as systemic or structural in order to be attributable to the state authorities, and must not merely comprise individual instances where something may have been dysfunctional in the sense of going wrong or functioning badly.... The dysfunction at issue must have resulted from the failure of the state to meet its obligations to provide a regulatory framework in the broader sense indicated above."