It is an irony that Article 2 of the European Convention on Human Rights – the right to life – is a right examined by the courts in retrospect; that is, after someone has died. But deaths that happen in member states – other than as a consequence of a naturally occurring disease – call for further investigation. Where there is an arguable breach of Article 2, the courts (most recently in R (Maguire) v HM Senior Coroner for Blackpool & Fylde [2023] UKSC 20) have affirmed that a series of duties come into play. In broad terms, they have been defined as a systems duty, an operational duty and, where there is an arguable breach of one of those duties, the state has a further investigative obligation (an enhanced procedural duty).

Having appropriate legislative and administrative frameworks in place that serve to protect life, and to deter the taking of it, is the usual way states meet the first substantive obligation, the systems duty.  This includes a criminal justice system that can enforce criminal sanctions, or regulatory and professional bodies that govern the health and social care sector. These frameworks are tried and tested, and have evolved over time so bereaved families can rarely point to a gap in the state’s legal and administrative apparatus sufficient to argue that Article 2 is engaged. The fact that an individual working in that apparatus has caused a death by their negligence is not usually considered sufficient to amount to a breach of the systems duty, as there are other remedies available for those harmed by medical negligence.  

The courts, more commonly, have been concerned with the nature and extent of the operational duty and the impact that has on any investigation and conclusion reached as to how the person died.  

The operational duty arises where the state agency concerned is, or should be, aware of a ‘real and immediate risk to life’.  The test derives from Osman v UK [1998] 20 EHRR 245 – a case where a teacher made serious and repeated threats to Mr Osman’s family, who alleged that the police failed to take them seriously or act on them, resulting in the death of Mr Osman and the wounding of his son at the hands of the teacher.

The test has been refined in the first consideration of the operational duty in the healthcare context in Rabone v Pennine Care NHS Trust [2012] 2 AC 72. Ms Rabone was a voluntary in-patient at a psychiatric facility at Stepping Hill Hospital (pictured) and took her own life while on leave from the hospital. Distinguishing her situation from cases of mere acts of negligence, the court held that there were four considerations in establishing the existence of an operational duty: (a) a real and immediate risk to the individual’s life; (b) an assumption of responsibility by the state for the individual’s welfare and safety (including the exercise of control); (c) vulnerability of the individual concerned; and (d) whether the risk involved is an ordinary risk or an exceptional risk. As Ms Rabone was deemed a high risk of suicide – which was the principal reason for her treatment – permitting her to take home leave was a failure to take all reasonable steps to avoid the risk of taking her own life. As such, the trust had breached the operational duty.

The Rabone considerations remain the starting point for most coroners, although the decision has been refined and approved in later judgments. In a recent careful examination of the substantive and procedural duties in R (Morahan) v HM Assistant Coroner for West London [2021] EWHC 1603 (Admin), Popplewell LJ made clear that the existence of an operational duty is not a category exercise applying to all voluntary psychiatric patients regardless of their circumstances. The fact of state detention does not dictate such an approach to the operational duty: what matters is the ‘type of harm of which [the person detained] is foreseeably at real and imminent risk’. If there is no foreseeable harm, there is no operational duty. The judge further observed that the control exercised over a vulnerable detainee must be linked to the nature of the harm. The example being that a psychiatric hospital owes no duty to protect a patient from the risk of accidental death in a road traffic accident while on leave from that hospital.  

The implications of the existence and possible breach of these substantive rights come to the fore in the way coroners conduct their inquests and the nature of the conclusions (formerly called verdicts) they reach. Most investigations into unnatural deaths involve a relatively limited exercise of determining who the deceased was, and where, when and how they died. The ‘how’ question being interpreted narrowly as ‘by what means’ they came by their death. Since 2009, the statutory provisions have required an inquest to determine the question of how the deceased died in broader terms where there is an arguable breach of Article 2: the question of ‘how’ must include consideration of by what means and in what circumstances. This enhanced procedural duty can also include an extended or enhanced conclusion (or verdict).  

The Supreme Court’s most recent consideration of this enhanced conclusion was in Maguire (June 2023). This concerned an inquest into the death of Jacqueline Maguire, who had Down’s Syndrome and learning disabilities, and died in hospital from pneumonia and a perforated gastric ulcer. She had fallen unwell and had initially refused to attend hospital. A decision was taken not to force her against her will, even though she lacked capacity to know the consequences of refusing to attend hospital. The next day she collapsed and was taken to hospital where she died.  

The coroner originally considered Article 2 was engaged but revisited that question having considered all the evidence. The coroner ruled that there had not been a failure by the care home or the ambulance service to have systems in place and that allegations of negligence (which is what the family’s submissions amounted to) did not engage Article 2. As such, the jury was invited to return an unexpanded conclusion (that is, without reference to the wider circumstances) which they duly did – concluding that Ms Maguire had died of natural causes.

The Divisional Court and the Court of Appeal heard submissions that the operational duty was engaged, justifying an expanded conclusion due to Ms Maguire’s vulnerability – she lacked capacity and was under a deprivation of liberty safeguard. These arguments were rejected by the lower courts and the Supreme Court agreed. The assumption of responsibility by the care home and Ms Maguire’s vulnerability in circumstances where she fell acutely ill did not impose a systems duty on the part of the care home and neither could it be said that an operational duty arose – affirming Popplewell LJ’s approach in Morahan that what mattered was the nature of the harm and the specific risk to life it precipitated.  The staff at the care home had undertaken their role and when Ms Maguire fell ill contacted the relevant medical specialist. (Had they not, then the operational duty may have been engaged.) As to the role of the ambulance service, they too took appropriate advice and reached a decision not to force her to attend hospital against her will having undertaken an appropriate and reasoned assessment.  

In the absence of a systems or operational duty, the Supreme Court affirmed that no enhanced procedural duty arose, and it followed that the coroner’s original conclusion was sound.

Nicholas Graham is an assistant coroner in the Thames Valley area

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