Article 2 duties re-confirmed: The Systems Duty and Operational Duty

Case

R (on the application of Maguire) (Appellant) v His Majesty's Senior Coroner for Blackpool & Fylde and another (Respondents) [2023] UKSC 20

In keeping with the family’s wishes and the Supreme Court Judgment, Jacqueline Maguire will be referred to as “Jackie”.

Who is this alert for?

This alert is for anyone working within the field of health and care of vulnerable people, who may also engage with the inquest process. This also includes providers of health and care services such as care homes, GPs, emergency services and Hospital Trusts.

Summary

• For brevity, the factual circumstances of this case can be found within our previous article here: Case Summary: R (Maguire) v HM Senior Coroner for Blackpool Fylde [2020] EWCA Civ 738.
• The Supreme Court heard the appeal on 22 – 23 November 2022 and the Judgment was handed down on 21 June 2023. The Lordships unanimously refused the appeal.
• The Judgment has helpfully set out the legal framework surrounding the engagement of the enhanced procedural duty of investigation and specifically in relation to the systems duty and operational duty under article 2.
• The Judgment principally concerned itself with whether, in respect of the Care Home and the healthcare providers, arguably breached the systems duty and/or the operational duty.
• The Judgment also reconfirms a line of cases that preceded it which sets out the applicable thresholds for an arguable breach of the system and operational duty in inquests.

 

Why is this important?

Systems Duty

When considering whether there has been an arguable breach of the systems duty, there must be a consideration of the specific system and whether it is capable of being “operated in a way which would ensure a proper standard of care” [146]. A proper system, if implemented and operated appropriately would ensure a proper standard of care for the residents of a care home.

Of note, similar observations have been made in a Prison setting (see Scarfe & Ors, R (on the application of) v HMP Woodhill & Anor [2017] EWHC 1194 (Admin) (23 May 2017)) which remains good law as of the time of this article.

Similarly for the healthcare providers, the professionals had their training and understanding tested by the coroner. The ambulance crews in question, considered further medical advice and assessed Jackie’s best interests; this confirming that they were working under an appropriate and effective system.

When considering the systems duty, the view of a domestic regulator such as the CQC or bodies responsible for the oversight of healthcare providers, will usually be powerful evidence that the duty is satisfied.

Most importantly for practitioners and providers to consider, is the Lordships confirmation that both care homes and healthcare providers operate these systems at a “high level” [145]. References were made to Fernandes[1] and confirmed the understanding that only in “very exceptional circumstances” would article 2 be engaged in respect of the acts and omissions of healthcare providers themselves.

Though Fernandes only concerned the provision of care by a hospital, the Lordships in this Judgment confirmed that there was “no good reason to adopt any different approach in the ordinary care context” [147] and that position between healthcare providers and care homes “was essentially the same”, when it comes to the systems duty.

Accordingly, the Lordships did not consider the systems duty engaged in respect of either parties.

Operational Duty

When considering the deprivation of liberty and Jackie’s vulnerability, her situation in the care home was not analogous to a psychiatric patient nor was she in the care home for medical treatment. The staff at the Care Home were not medically trained. Their role was to look after her in place of her family; ensuring she had access to healthcare which is generally available to the population.

Turning to the assumption of responsibility on behalf of the care home, the Lordships set out that Osman[2] does not extend this responsibility to all aspects of one’s physical health. Even through the individual may not be at liberty, the State is not “made the guarantor of the adequacy of healthcare provided to them in all respects”[190].

Citing Morahan[3], this responsibility must relate to steps to avert a specific risk to life and not in the abstract; that specific risk must first be identified (known or ought to have been known by those caring for her [192]). In the present case, the Care Home sought medical assistance and was entitled to rely upon the advice given by the paramedics to not convey Jackie to hospital.

For the healthcare providers, the assumption of responsibility relates to the decision not to take Jackie to hospital on 21 February 2017, this date was before the risk of death increased dramatically. Again, the Lordships reiterated the requirement for healthcare professionals to know or ought to have known about the specific risk to life. There had been a reasonable assessment by the paramedics not to transfer which was not criticised by the expert during the inquest.

Accordingly, the Lordships did not consider the operational duty engaged in respect of either parties.

What is the impact of Maguire on practitioners and providers of health and care?

Beyond the observations set out above, it is of interest to note that the Lordships recognised the multifactorial decisions being made by health and care professionals.

In the face of resistance from a patient, the decision to transfer Jackie was not a simple matter of physical or chemical restraint. One must also give consideration to a patient’s other convention rights. At the relevant time, professionals will be considering the need to respect a patient’s autonomy, dignity and respect; the need to maintain a “good and cooperative relationship”.

This Judgment is recognition from the Supreme Court of the difficult decisions professionals make and their attempts to maintain a therapeutic relationship with the individual in question whilst caring for their best interests.

How we can support your organisation?

If you would like to discuss this, inquests and/or deprivation of liberty, please do get in touch with Eric Chan, Solicitor or Stuart Marchant, Partner from the Health, Care & Regulatory Law Team. 

 

[1]              Lopes de Sousa Fernandes v Portugal (2017) 66 EHRR 28

[2]              Osman v United Kingdom (1998) 29 EHRR 245

[3]              R (Morahan) v West London Assistant Coroner [2021] EWHC 1603 (Admin); [2021] QB 1205