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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Maguire, R (On the Application Of) v United Response & Ors  EWHC 1232 (Admin) (15 May 2019)
Cite as:  EWHC 1232 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE FARBEY
HIS HONOUR JUDGE LUCRAFT QC
(Sitting as a Judge of the High Court)
| THE QUEEN
(on the application of MURIEL MAGUIRE)
- and –
|HER MAJESTY'S SENIOR CORONER FOR BLACKPOOL AND FYLDE
|(1) UNITED RESPONSE
(2) NORTHWEST AMBULANCE SERVICE
(3) BLACKPOOL VICTORIA TEACHING HOSPITAL
(4) DR SARFARAZ ADAM
(5) DR SUSAN FAIRHEAD
(6) BLACKPOOL CITY COUNCIL
(7) CARE QUALITY COMMISSION
(8) KENNETH MAGUIRE
Miss S Cartwright (instructed by Blackpool City Council) for the Defendant
Miss C Watson (instructed by DAC Beachcroft) for the 1st Interested Party
Miss M Fanneran (instructed by North West Ambulance Service) for the 2nd Interested Party
Miss A Samuel (instructed by Blackpool Victoria Teaching Hospital) for the 3rd Interested Party
Mr A Perfect (instructed by MDDUS) for the 4th Interested Party
Hearing dates: 1st and 2nd April 2019
Crown Copyright ©
Lord Justice Irwin:
Ms Samuel: ".. the interested persons reserve their right to come back and argue the applicability of Article 2 before the jury are directed by yourself in order to give us some time to digest that judgment."
Coroner: "It was brought to my attention relatively recently as well. I do not think we can do anything else but if we need to re-visit it as we go along."
Ms Samuel: "I think we have to. Certainly the evidence is not going to change. You have already got all of the evidence you would get in any event as to whether it was an Article 2 or, arguably even it was not, so it seems in reality it is going to come down to does that Article 2 decision stay in place when you give directions to the jury? If not, then maybe that is the point to re-visit it, but we would need to have time to digest it and read that case rather than trying to rush and deal with it today."
Coroner: "I do not think we need to go into it any greater detail. We are almost in one of those situations where coroners always used to say, "We are going to have an Article compliant inquest and then when we have heard all the evidence we will see whether it is Article 2 or not". But let's park that for the moment. I am grateful for the indication."
The inquest before the jury then got underway. Called to give evidence in the course of the inquest were some 30 witnesses, including Jackie's mother Mrs Muriel Maguire, and relevant nursing, care and medical staff, as well as expert witnesses.
The claim for judicial review
State duties under Article 2
"the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures… which, judged reasonably, might have been expected to avoid that risk".
"In particular, where a state assumes responsibility for an individual, whether by taking him into custody, by imprisoning him, detaining him under mental health legislation, conscripting him into the armed forces, the state assumes responsibility for that individual safety. So in these circumstances police authorities, prison authorities, health authorities and the armed forces are all subject to positive obligations to protect the lives of those in their care".
The parties' submissions on article 2
Analysis and conclusions on article 2
"Whether neglect ought to be left to the jury, however, needs consideration of the following, first, whether there is evidence of a gross failure and, secondly, whether the arguably neglectful conduct can be said to have a clear and direct causal connection with the death. …. So far as the clear and direct causal connection is concerned, we have heard evidence from Dr Shaktawat, the pathologist, giving evidence that, in his views, the direct cause of death related to the perforation of a gastric ulcer, albeit with evidence of pneumonia, which is why it is put as part 2 of the medical cause of death. In relation to arguably gross failings, the court is of the view that there are no individual failings that could be safely put before the jury as arguably gross".
"19. There are two alternatives for conclusions which are sanctioned by the Coroners and Justice Act 2009, the Coroners (Inquests) Rules 2013 and the common law as expounded in case law: (1) a short-form conclusion and (2) a narrative conclusion. It is also permissible to combine the two types of conclusion.
20. The conclusion, short-form or narrative, must be entered in Box 4 of the Record of Inquest.
21. There must always be sufficient evidence on a Galbraith plus basis for a conclusion."
"74. The following does no more than outline the concept of neglect in coroner law. Neglect is not a conclusion in itself. It is best described as a finding. It must be recorded as part of the conclusion (in Box 4). It has a restricted meaning according to the case law. It should not be considered as a primary cause of death.
75. A finding of neglect (formerly lack of care) was specifically approved in Jamieson. It may form part of the conclusion in Box 4, either as words added to a short-form conclusion (see paragraph 32 above) or as part of a narrative conclusion.
76. Neglect is narrower in meaning than the duty of care in the law of negligence. It is not to be equated with negligence or gross negligence. It is limited in a medical context to cases where there has been a gross failure to provide basic medical attention.
77. The deceased must have been in a dependent position (because of youth, age, illness or incarceration): see next paragraph.
78. Neglect was defined in Jamieson (a hanging in prison) in this way:
'(9) Neglect in this context means a gross failure to provide adequate nourishment or liquid, or provide or procure basic medical attention or shelter or warmth for someone in a dependent position (because of youth, age, illness or incarceration) who cannot provide it for himself. Failure to provide medical attention for a dependent person whose position is such as to show that he obviously needs it may amount to neglect ...'
79. This definition has been expanded more by illustration than by changes in the law, testing the words 'gross failure' and 'basic' against particular facts. In broad terms there must be 'a sufficient level of fault' to justify a finding of neglect. That does not mean that, for example in a medical context, there has to have been no action at all, simply that the action (or lack of it) on an objective basis must be more than a failure to provide medical attention. It must be a gross failure. The difference will be highly fact-specific.
80. In a medical context it is not the role of an inquest to criticise every twist and turn of a patient's treatment. Neglect is not concerned with the correctness of complex and sophisticated medical procedures but rather the consequences of, for example, failing to make simple ('basic') checks."