The Supreme Court has just handed down judgment in the case of Maguire, a judicial review where the family sought to assert that Article 2 was engaged, such that the jury should have considered the circumstances by which Jackie came by her death.

Jackie was a middle-aged lady with Down’s syndrome who was vulnerable living in a care home and subject to a DOLS order.

The inquest looked at a number of issues; those central to the judicial review being whether the day prior to her death paramedics should have taken Jackie into hospital and whether there was sufficient monitoring of Jackie whilst unwell by the care home. By the time that Jackie was taken to hospital she was gravely ill and sadly passed away. The coroner determined that Article 2 was not arguably engaged. This decision was upheld by the High Court and Court of Appeal.
The matter came before the Supreme Court in November of last year.

Put simply the Supreme Court endorsed the submissions made by all IP’s, other than the family, in the original inquest and the view taken by the coroner that:

• There was no real and immediate risk to life that was or should have been known about, such that the Operational duty was not triggered;
• There were systems in place which, if appropriately utilised, were sufficient such that there was no breach of the systems duty;
• Any individual failings/lapses did not invalidate the systems in place, such that the comments in Parkinson in relation to medical care remained good law;
• Negligent coordination among health professionals in the treatment of a patient is not sufficient to call a state to account from the point of view of its positive obligations under article 2.
• A DOLS order and/or accommodation in a care home funded by the state did not change the application of the systems duty or elevate Jackie’s status in relation to accessing medical care in the community.

Interesting points that arise from the Judgment:

• Direction from the Court that counsel for the coroner should act as, ‘amicus curiae to ensure that the court is given the full factual picture, including, if necessary, by drawing the court’s attention to matters not emphasised or omitted by a claimant, as well as alerting it to relevant law and authorities.’ This will come as a welcome comment by most Coroners who have, understandably, been concerned about the costs consequences of being seen to overstep the bounds of neutrality during the judicial review process.
• Regard will be had to a wholesale change in legal argument taken by an applicant during the Judicial review process – it being noted that, ‘in a case like this, where the coroner was assisted by considered and detailed submissions by counsel for each of the interested persons, he was entitled to focus on the arguments presented in those submissions. He was entitled to expect that counsel for the interested persons could generally be relied on to invite his attention to what they regarded as important and significant in the particular circumstances of the case, and each other interested person was entitled to understand that the main areas of contention and debate between them were identified and framed in this way.’ Other than points addressed in submissions the coroner need only consider other obvious points.
• Judicial comment about the inappropriateness of reverse engineering, namely seeking to look at what had gone wrong and then formulate an obligation tailored to the circumstances.
• Judicial endorsement that systems don’t have to be formulaic, they can appropriately rely on the exercise of individual judgment.
• Popplewell LJ’s considered approach in Morahan is repeatedly endorsed when assessing whether there is an operational duty. There needs to be consideration of, ‘the degree to which assumption of responsibility is a factor relevant to the operational duty under article 2 depends upon the specific risk to life of which the authorities were aware and which they understood had to be guarded against.’
• In assessing the application of the state’s operational duty there is a need to consider the interests of the vulnerable; in particular promotion of autonomy, integration, and relationships of trust.
• Reminder that the Court will not get involved in the state’s allocation of limited resources.

This is a welcome decision for coroners and practitioners alike, providing further clarification as to the scope of Article 2 in cases involving vulnerable patients in a healthcare context.

Ana Samuel
Note: the author represented NWAS at the inquest and before the High Court.

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