When is neglect not neglect?

Still angry, I know its not healthy and if my lovely ma were still alive she’d be imploring me to shut my laptop and do something to relax. I tried this afternoon after posting my last three blogs, honest I did, but I managed to balls up my knitting and lose the plot of what I was watching, because I was writing this post in my head and revisiting the last week wondering if I’d dreamt some of what happened. I decided to smash this post out in an attempt to clear my head once and for all today. It won’t be eloquent but hopefully it’ll capture something.

Earlier today I wrote Natural Causes, which outlines the conclusions of the inquests into Thomas Rawnsley and Joanna Bailey, that concluded this week. Thomas was under a Deprivation of Liberty Safeguard at the time of his death and Joanna was detained under Section 3 of the Mental Health Act.

Thomas and Joanna’s inquests both involved a coroner sitting with a jury, both were Article 2 inquests, which refers to Article 2 of the European Convention on Human Rights. Article 2 imposes a procedural obligation on the State to conduct an investigation into the deaths of anyone who dies while they are detained, as both Thomas and Joanna were.

Assistant Coroner Combes was persuaded by legal argument on behalf of Lifeways, Bradford Council, Yorkshire Ambulance Service and a number of GPs in Thomas’s care, that this investigative duty was not engaged.

If Thomas’s inquest had gone ahead last year his family are certain that they would have had a fuller inquest, in part because they felt Coroner Dorries was more committed to undertaking one, and in part because the Maguire Court of Appeal Case judgement was not law at the time.

Who was Jackie Maguire and what happened to her?

Jackie was described by her family as:

‘Jackie Maguire led a happy and fulfilling life. She was much loved by her mother and siblings and had a strong and independent personality’. 

Jackie was a learning disabled person with Down syndrome and she was just 52 when she died from a perforated stomach ulcer in February 2017. She lived in a private care home run by United Response, and she was placed there by the Court of Protection under a Deprivation of Liberty Safeguard.

There were a catalogue of failings in the care provided to Jackie. In the week before she died Jackie complained of a sore throat and had a limited appetite.  Two days prior to her death she suffered from a raised temperature, diarrhoea, vomiting, fainting and fitting.

There were a number of errors and deficiencies in the ‘care’ provided to Jackie as her health deteriorated, included deficiencies in assessing and providing treatment. There were omissions to call a GP when she first asked staff to, a decision by paramedics not to take her to hospital when Jackie refused to go, and failures by the GPs, who were consulted by paramedics and the care home, to either attend in person or elicit and act upon appropriate information about Jackie’s condition.

Crucially there was no system in place to get Jackie to hospital in circumstances where she said she didn’t want to go, even though she had been found to lack capacity to make such decisions, so these decisions needed to be made on her behalf and in her best interests. 

At a pre-inquest review the Senior Coroner for Blackpool decided that Jackie’s death should be investigated under Article 2, and held the inquest as such. Once the evidence concluded the coroner reconsidered their position based on the judgement of R (Parkinson) v Kent Senior Coroner which had recently been handed down.

On those grounds the coroner decided that the failings of Jackie’s carers and those providing healthcare amounted to ‘allegations of’ individual negligence and Article 2 was not engaged because there was no exceptional systemic failure.

Jackie’s family were granted permission by the High Court to appeal the Senior Coroner’s decision. Their solicitors stated:

‘It was argued that the Coroner had wrongly failed to consider whether the various undoubted individual failings in care to Jackie  Maguire, by the various agents involved in her care -from the support workers, to the GPs, a paramedic crew attending and various doctors at the hospital, taken as a whole, were capable of being viewed by the jury as amounting to a serious failure to provide basic medical care to a vulnerable person. This was plainly a case in which there was sufficient evidence to leave the question of neglect to the jury.

The judicial review hearing is about to be listed and will highlight the failings in care to a very vulnerable woman, and the fact that the evidence shows that this is worryingly part of a much wider picture of neglect which should lead to an Inquiry if future lives are to be saved amongst this vulnerable group. The case law correctly applied shows that Art 2 was engaged and that there were several gross failings in care which could reasonably lead to a finding of neglect by the jury.

Devastatingly earlier this year the Court of Appeal upheld the Coroner’s decision at Jackie’s inquest and decided that it must either be arguable that a death arose from a situation of danger created by the state, or from a systemic failure by the state in the provision of services where the authorities knew or ought to have known of the risk and failed to take measures to prevent that risk.

Which brings me back full circle to the title of this blog post, When is neglect not neglect? When it applies to the care provided to learning disabled people of course.

Muriel, Jackie’s mum, had this to say about the latest decision:

I am bitterly disappointed that the Court of Appeal has ruled that the dreadful circumstances of my daughter Jackie’s death did not engage Article 2.  This followed failings by care home staff and medical professionals, which meant Jackie did not get access to the emergency medical treatment that she so desperately needed, resulting in her death at only 52. 

I miss her terribly.  I am still struggling to come to terms with the awful way that she died and the fact that she was let down by so many people with responsibilities for her care.  I am certain that if the jury at Jackie’s inquest had been allowed to comment on the wider circumstances surrounding her death, they would have been critical of the care she received and made findings that fully reflected what happened to her.  They were denied this opportunity by the Coroner. 

I fear that other families like mine, whose loved ones are vulnerable and do not have the mental capacity to act in their own best interests, will now find it more difficult to obtain justice and accountability following their death.  I intend to continue my fight for justice for Jackie and seek permission to appeal to the Supreme Court.

The removal of Article 2 from Thomas’s inquest

This week the jury in Thomas’s inquest were not allowed to comment on the wider circumstances of his death, as far as I understand it because once Article 2 is no longer engaged then only the questions of who a person was, where, when and how they died are to be recorded.

The limitations of instructions given to Joanna’s jury

In Joanna’s inquest the Coroner didn’t go as far as to remove Article 2, perhaps because Joanna was detained in hospital not in the community, so the jury were allowed to make incredibly limited comments on the Article 2 aspect, ‘the wider circumstances’ of her death.

I really struggled to understand the direction she actually gave to the jury around this, even though she gave it twice. They were told that they could not find neglect, and that their comments had to be made in neutral language and that they should write additional comments on a separate piece of paper that would be read out in open court, so it went onto the record, but would not be attached or included in the record of inquest. If anyone legal has any understanding of why this was I’d love to hear more.

** Oliver Lewis, the Barrister for Joanna’s family has since confirmed that the case law decision the Coroner was referencing was R (Carole Smith) v HM Assistant Coroner for North West Wales [2020] EWHC 781 (Admin) and for a good overview/analysis of it see the blog post Oliver highlights, also linked here for ease. **

The jury in Joanna’s case had to find that she died of natural causes but they still commented on the failure of staff to provide CPR, the inconsistent observations and the fact there was no careplan accessible to staff. They then commented on no less than 11 areas of concern, you can read them all in my last post.

Half hearted neglect

I’ve attended eight inquests into the deaths of learning disabled and/or autistic people in the last few years, and despite horrendous failings in care in all of them, only in two, Connor Sparrowhawk‘s and Joe Ulleri’s did their inquests record that they died from neglect.

At Connor’s inquest we heard about an earlier patient who had also had a seizure in the bath at the STATT unit, his death was of course chalked down to natural causes. I’m sure it’s only learning disabled people or people who are mentally unwell who can be malnourished, suffer a seizure in a bath and drown and that be chalked down as ‘natural’, just as Connor’s death was in the first instance.

At Joe’s inquest the jury found that failures in his overall care and failure to provide adequate nutrition constituted neglect.

Richard’s inquest heard about numerous failings in his care, an entire litany of them, the coroner went as far as to pronounce them gross failings.

However, the Coroner also had some logic that to this day I don’t understand about the fact that the failings were on the part of multiple agencies and therefore couldn’t as a whole be considered neglect. At least that’s what I think he said. As the brilliant Michael Buchanan opined at the time:

The Coroner’s narrative is below and you can read more about the evidence heard in court here.

Danny Tozer’s inquest heard two weeks of evidence of the failures of care provided by Mencap. Danny’s death was one of 85 unexpected deaths in Mencap’s care in the ten years before his inquest. They didn’t even conduct an internal investigation when he died. They instructed their barrister to argue for a narrow scope of inquest and their staff all appeared to suffer from a collective amnesia.

The coroner chalked Danny’s death down to SUDEP, of course, and as the coroner at Joanna’s inquest was at pains to point out, ya can’t stop it.

Colette McCulloch’s coroner will always hold a special place in my heart, he had to compose himself as he delivered his determination.

Coroner Oldham appeared to genuinely care about Col and her family, and the job he’d been given to do. His narrative is below if you’d like to read it:

The coroner in Sasha Forster’s death instructed the jury that it would be unsafe to leave neglect to them:

I have no legal training, my super power is typing quickly, but I like to consider myself a reasonably rational person, however I can’t for the life of me comprehend how neglect of learning disabled and autistic people is so impossible to find.

The inquests I attend are inquests into the deaths of people who are dependent on the care and support of others for happy and healthy lives. It’s worth saying that many organisations are paid huge sums of public money to provide this care, yet there’s often no care about it at all.

I’m finally out of steam, I’ve spent about 9 hours blogging today, I’ve no pithy or witty ending, its hard enough work wrangling something comprehensible out of the spaghetti in my brain.

I can’t comprehend this reality at all. The only conclusion I can draw is that the lives and deaths of some people matter less than others. And that stinks.

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