This is a sad case where Jackie died in hospital of a perforated ulcer. She had lived in a care home for over 20 years and was subject to a deprivation of liberty safeguard under the Mental Capacity Act so she was unable to leave the home without supervision. This was because she had Down’s syndrome and moderate learning difficulties.
There were a chain of events that impacted the care that Jackie received; a doctor’s failure to make a home visit; a doctor’s failure to get full information from the carers and to make a proper assessment; lack of information from NHS 111; the ambulance crew not told about Jackie’s diagnosis of Down’s syndrome and so unable to take her to hospital.
An inquest took place to look at the circumstances of her death and Jackie’s mother challenged two of the decisions by bringing a judicial review. She believes that there should have been an Article 2 inquest instead of the normal one. She also wanted the jury not the coroner (judge) to decide whether there had been neglect in this case.
The Mental Capacity Act sets out who and how decisions are made for you if you’re unable to make those decisions yourself, for example, because of your mental health problem, an illness, an injury, or outside reasons like the effect of medication you are prescribed.
Being deprived of liberty means that you are kept on a locked ward or in a locked room, or you are not free to go anywhere without permission or close supervision, and you are continuously supervised. This is against the law unless it is done under the rules set out in the Mental Capacity Act. The Mental Capacity Act says that your liberty can only be taken away by health professionals if they use the procedures called the Deprivation of Liberty Safeguards (DoLS).
Article 2 of the European Convention on Human Rights provides that everyone’s right to life is protected by law. If someone is in the state’s care for example, they are in a police cell, prison or in immigration detention, the state has an extra responsibility to prevent their death because they have a level of control over the person. If Article 2 applies in a case there needs to be a more thorough, independent investigation into a death.
Judicial review is a way of challenging a public body to make sure that they followed the law correctly. The court cannot change the decision but they will look at the way that the decision was made and if they think that the public body did not use the correct process or took the wrong information into account they can ask them to reconsider it using the right process or information.
The court decided that Article 2 doesn’t apply in this case. Just because someone lacks capacity to make certain decisions and is deprived of their liberty under the Mental Capacity Act, doesn’t mean that they are automatically in state detention. It will depend on the facts of the case so each one will need to be decided individually.
The court also agreed with the coroner that the failings from individual people should not be grouped up and taken as a whole and did not meet the test for whether the jury should consider whether there had been negligence.
Our thoughts are with the family at this difficult time. It is always tragic to lose someone but particularly when there are concerns that it could have been avoided.
The court reiterated that the state had a positive duty to prevent deaths of people who are detained under the Mental Health Act as set out in the Savage case and voluntary patients in the Rabone case. Both of which cases Mind intervened in.