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Text:ICLR [2020] WLR(D) 333

Court of Appeal

Regina (Maguire) v Blackpool and Fylde Senior Coroner

[2020] EWCA Civ 738M

2020 Feb 4, 5;

June 10

Lord Burnett of Maldon CJ, Ryder, Nicola Davies LJJ

Coroner— Inquest— Jury— Vulnerable incapacitous adult living in care home falling ill and dying in hospital— Coroner finding no evidence suggesting death occurring in breach of positive obligation to protect life and limiting jury’s consideration to “how” deceased came to die— Whether operational duty owed to deceased— Whether death occurring in breach of operational duty— Whether giving rise to procedural duty to investigate circumstances of death— Whether jury ought to be permitted to deliver expanded conclusion— Human Rights Act 1998 (c 42), s 2, Sch 1, Pt 1, art 2 — Coroners and Justice Act 2009 (c 25), s 5

Section 5 of the Coroners and Justice Act 2009, so far as material, provides: “(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), 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.”

The deceased, the adult daughter of the claimant, had Down’s syndrome and suffered from learning disabilities and behavioural and physical difficulties. She lived at a home operated by the first interested party which provided accommodation for adults with learning disabilities who required personal care. She was subject to a standard authorisation granted by the local authority pursuant to the Deprivation of Liberty Safeguards set out in Schedule A1 to the Mental Capacity Act 2005, and her placement at the home was funded by the local authority. The deceased became seriously ill while at the home and died in hospital two days later. An inquest was held into her death. Before the coroner, the deceased’s family argued that the circumstances of her death dictated that there should be an inquest which satisfied the procedural obligation under article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The coroner concluded that the evidence did not suggest that the death might have resulted from a violation of the positive duty to protect life, or operational duty, imposed by article 2 and that the procedural duty did not therefore apply. It followed that the jury were limited to considering the matters set out in section 5(1) of the Coroners and Justice act 2009 and were not required to consider in what circumstances the deceased came by her death under section 5(2). The claimant sought judicial review of that decision. The claim was dismissed by the Divisional Court of the Queen’s Bench Division.

On the claimant’s appeal—

Held, appeal dismissed. The question whether an operational duty under article 2 of the Convention was owed to a vulnerable adult incapable of looking after herself and lacking capacity to make decisions about her care was not an abstract one which delivered a “yes” or “no” answer in all circumstances. As the jurisprudence of the European Court of Human Right showed, the article 2 operational duty was owed to vulnerable people under the care of the state for some purposes. If a death in this jurisdiction in a hospital or care home for which the state was responsible resulted from a failure to protect the deceased from a type of harm entirely within the control of those who cared for them, the substantive or operational duty under article 2 would be engaged. So too if the state was aware of the shortcomings, through regulatory inspections, and did not act on them. However, an operational duty for all purposes, which then spawned the distinct procedural obligation (with all its components) in the event of a death which followed either alleged failures or inadequate interventions by medical professionals, was not owed to those in a vulnerable position in care homes. On the contrary, it was necessary to consider the scope of any operational duty. That in the present case the coroner had been right to conclude on the evidence adduced at the inquest that there was no basis for believing that the deceased’s death was the result of a breach of the operational duty of the state to protect life. It followed that the article 2 procedural obligations did not apply. Accordingly, for the purposes of the inquest the conclusions were governed by section 5(1) of the 2009 Act (paras 96–107).

Rabone v Pennine Care NHS Trust (Inquest and others intervening) [2012] 2 AC 72B, CA, Nencheva v Bulgaria CE:ECHR:2013:0618JUD004860906, Câmpeanu v Romania CE:ECHR:2014:0717JUD004784808, GC, Dumpe v Latvia CE:ECHR:2018:1016DEC007150613 and Lopes de Sousa Fernandez v Portugal (2018) 66 EHRR 28, GC considered. Decision of the Divisional Court of the Queen’s Bench Division [2019] EWHC 1232 (Admin)M affirmed. Victoria Butler-Cole QC and Nicola Kohn (instructed by Bindmans llp) for the claimant.

Jason Beer QC and Sophie Cartwright (instructed by Corporate Legal Services, Blackpool Council) for the coroner.

Claire Watson (instructed by DAC Beachcroft llp) for United Response, the first interested party.

The eighth interested party, Kenneth Maguire, appeared in person.

The second to seventh interested parties did not appear and were not represented.

[Reported by:] Matthew Brotherton, Barrister