0370 270 6000

already registered?

Please sign in with your existing account details.

need to register?

Register to access exclusive content, sign up to receive our updates and personalise your experience on brownejacobson.com.

Privacy statement - Terms and conditions

negligent medical treatment not sufficient to engage State responsibility under Article 2 ECHR

4 June 2019

The recent judgment of R (on the application of Maguire) v Her Majesty's Senior Coroner for Blackpool and Fylde [2019] EWHC 1232 (Admin), reaffirms that individual acts of medical negligence are not sufficient to engage State responsibility under Article 2 ECHR.


JM was a 52-year-old woman with Down’s syndrome and moderate learning disabilities who died in hospital of a perforated ulcer. JM, who had been deprived of her liberty under the Mental Capacity Act 2005, had been living in a care home and was dependent on care home staff for day to day care. It was alleged that there were a number of failures by JM’s carers and healthcare providers in the days leading up to her death, including failures to triage properly, provide a full history and give adequate advice.

A jury inquest into JM’s death was held on the basis that Article 2 was engaged. However, the Coroner reconsidered this position following the judgment of R (Parkinson) v Kent Senior Coroner [2018] EWHC 1501 (Admin), which gave guidance on the engagement of Article 2 in respect of deaths in hospital. The Coroner held that Article 2 was not engaged, as the allegations of individual negligence against JM’s carers and healthcare providers fell outside the ambit of the State’s Article 2 obligations.

JM’s mother challenged the Coroner’s conclusion by way of judicial review. Her application was dismissed.

When does Article 2 apply?

The Court affirmed that where the State has made provision for securing high standards among health professionals to protect patients’ lives, negligent medical treatment by individuals would not generally be sufficient to engage Article 2.

The Court further qualified that the positive duty under Article 2 would not always be engaged where a person dies in the care of the State, or where a person dies of natural causes but there is no reason to believe the State failed to protect their life. The kind of failure to protect a person’s life for which the State would be responsible would be a failure to provide timely and appropriate medical care to a prisoner in obvious need. However, where there is no systemic or regulatory failure, and the State has not assumed specific responsibility for a particular person’s safety, the State’s obligation under Article 2 will not be engaged.

In this case, the failures identified were attributable to the individual actions of JM’s carers, rather than any systemic or regulatory failure. In addition, the State had not assumed special and particular responsibility for JM. The Court therefore held that the State’s positive duty under Article 2 was not engaged.

What does this mean?

There is clear guidance that Article 2 will not be engaged by individual acts of negligent medical treatment alone. In medical cases, for the State’s obligation under Article 2 to apply, there must be evidence that there were systemic failings or a specific assumption of responsibility by the State for the deceased.

In light of this, it is even more important for NHS Trusts to ensure that their systems and regulatory frameworks are in order.

How we can help

When dealing with inquests, it may not always be clear if Article 2 is engaged. Our health team is experienced in advising on issues relating to Article 2 and representing NHS Trusts in inquests. If you need any advice or assistance, please do not hesitate to contact us.

focus on...

Legal updates

Capacity at birth – care planning, contingent and anticipatory declarations

Our recent case of United Lincolnshire Hospitals NHS Trust v CD is significant because it is the first reported judgment on the use of the Mental Capacity Act 2005 (MCA) to make contingent and anticipatory declarations in the event that P lacks capacity at a particular future point in time.


Legal updates

Sussex Partnership NHS Trust fined £200,000 – a warning for providers and investors

Sussex Partnership NHS Trust was sentenced on 14 June 2019 for failing to provide safe care and treatment to a 19 year old inmate being cared for on the hospital wing of Lewes Prison, Jamie Osborne.


Mental Capacity Act – anticipating loss of capacity

Health lawyer, Chris Stark, provides you with an update on the recent case of United Lincolnshire Hospitals NHS Trust v CD [2019] EWCOP 24.


Legal updates

Decision to allow termination of pregnancy overturned by Court of Appeal

P was 22 weeks pregnant and had a moderately severe learning disability and mood disorder. P’s treating NHS Trust brought an application to the Court of Protection to approve the termination of her pregnancy.


The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

mailing list sign up

Select which mailings you would like to receive from us.

Sign up