The Limits on the Application of the Positive Duty to Protect Life Under Article 2 of the European Convention on Human Rights
The recent decision of the Court of Appeal in the case of R (Maguire) v HM Senior Coroner for Blackpool and Fylde  EWCA Civ 738 address- es the question of whether the positive duty of the state to protect life under article 2 of the European Convention on Human Rights is owed to a vulnerable care home resident whose liberty is restricted under a Deprivation of Liberty Safeguards (“DoLS”) authorisation. Its conclusion? It might do, but only in limited circumstances.
AN ARTICLE 2 OR A NON-ARTICLE 2 INQUEST – WHY DOES IT MATTER?
Where there is an arguable breach of the state’s positive obligation to protect life under article 2 of the European Convention on Human Rights in relation to a death, the coroner conducting the inquest is required to return an expanded conclusion on the record of inquest. An expanded conclu- sion answers not just the question of “how” but also “in what circum- stances” the person died. The effect of an inquest being a broader article 2 inquest is that judgmental conclusions about failings that may have caused or contributed to the death can be recorded in the record of inquest.
The evidence heard at the inquest, whilst not of itself admissible in civil proceedings, will often determine whether a civil claim for damages for breach of article 2 is pursued against the party said to have caused or con- tributed to the death.
THE FACTS OF THE CASE
Jacqueline Maguire (“JM”) was 52 when she died in hospital on 22 February 2017 of the effects of a perforated gastric ulcer. She had Down’s Syndrome, in addition to learning disabilities and behavioural difficulties, as well as some physical limitations. She had lived for more than 20 years in a residential care home. Her placement was paid for and supervised by the local council and she was the subject of a standard DoLS authorisation.
JM became ill over the two days before her death. A range of criticisms were levelled at the care home, paramedics and an out of hours GP in respect of delay in JM being admitted to hospital.
THE COURT OF APPEAL’S DISCUSSION AND CONCLUSIONS
The Court of Appeal did not accept that the vulnerability of an individual in JM’s position, coupled with the fact of a DoLS authorisation automatically
By Emma Price, barrister at 5 Essex Court (5essexcourt.co.uk)
dictated that she was owed the article 2 duty to protect life.
The article 2 duty is owed to vulnerable people under the care of the
state for some purposes. A duty to protect from harm may exist where the type of harm is entirely within the control of those caring for the individual concerned. So Article 2 might be engaged in circumstances where appalling conditions in a residential care home led to the death of a vulner- able resident subject to a DoLS authorisation. The positive duty is not owed to a person in this situation for all purposes however; and a death which followed alleged failures or inadequate interventions by medical professionals would not generally engage article 2. JM was resident in a care home because she was unable to look after herself and it was not possible for her to live with her family; she was not there for medical treat- ment; and if she needed medical treatment it was sought, in the usual way, from the NHS.
IMPLICATIONS FOR THE CARE SECTOR
NHS Figures suggest that about 200,000 applications are made for DoLS authorisations per year, about half of which are granted. In light of the signifi- cant number of deaths of care home residents in the course of the Covid-19 pandemic, the Court of Appeal’s decision is likely to be a significant one for the care sector. Absent any other factors, where medical help has been sought for a vulnerable resident subject to a DoLS authorisation through NHS 111 or via a GP, or through the emergency services and medical advice has been acted on, it is unlikely that article 2 will be engaged. Where however there are questions about the adequacy of preventative measures in respect of Covid-19 in a residential care home or medical help has not been sought when it should have been, the position may be different.