Suspicious deaths of those detained in care homes: what amounts to an arguable breach of the operational duty under Article 2?

Since the availability of non-means tested legal aid for Article 2 inquests, it will be important for those representing bereaved families to identify at an early stage whether an inquest is likely to engage Article 2. Similarly, with the potential for the coroner or jury to return a conclusion that criticises the acts or omissions of interested persons, state bodies need to be aware of the circumstances when an Article 2 inquest might arise. The paradigm examples where it is engaged are suspicious deaths whilst detained in prison or whilst detained in a psychiatric unit under the Mental Health Act 1983. These have been described as cases in which Article 2 will automatically be engaged, and thus an Article 2-compliant inquest is required.

This article explores the jurisprudence to date in relation to deaths in care homes, where residents are similarly deprived of their liberty under the Mental Capacity Act 2005. The focus is on the state’s operational duty, as opposed to the wider systems duty, under Article 2 of the ECHR. In addition to practitioners preparing to represent bereaved families at inquests, this article will be relevant to:

• local authorities exercising their powers to detain people in care homes under the Mental Capacity Act 2005; and
• commissioning local authorities and NHS integrated care boards when deciding to place someone in a particular care or nursing home.

Cases where an Article 2 inquest is required

In R (Morahan) v HM Assistant Coroner for West London [2021] EWHC 1603 (Admin), Popplewell LJ conducted a thorough exploration of the domestic and Strasbourg jurisprudence regarding the operational duty under Article 2 and the circumstances in which an Article 2-compliant inquest must be held.

Automatic Categories

There are certain categories of deaths which have been held as automatically engaging Article 2, including:

• killings by state agents;
• suicides or attempted suicides and unlawful killings in custody;
• suicides of conscripts; and
• suicides of involuntary mental health detainees.

This is not an exhaustive list. Popplewell LJ held that the touchstone for whether the circumstances of a death are such to give rise to a duty to conduct an Article 2-compliant inquest is “whether they fall into a category which necessarily gives rise, in every case falling within the category, to a legitimate ground to suspect state responsibility by way of a breach of a substantive article 2 obligation” (at [122]).

Accordingly, not all deaths in state detention automatically engage Article 2. For example, in Tyrrell v HM Senior Coroner for County Durham and Darlington [2016] EWHC 1892 (Admin), the High Court held that an Article 2 inquest was not required for a death in prison arising out of natural causes, where there was no evidence of negligence or systemic failings by the prison or medical staff.

To date, there has been no authority that defines a category of deaths in care homes that would automatically trigger an Article 2 inquest.

Arguable breach of a substantive duty For cases that do not fall into one of the “automatic categories”, an Article 2 inquest will still be required if there has nonetheless been an arguable breach of one of the state’s substantive duties under Article 2. As we have been recently reminded in R (Ferguson) v HM Assistant Coroner for Sefton, Knowsley & St Helens [2025] EWHC 1901, the “arguability” threshold is a low one. Hill J cited Popplewell LJ in Morahan as to the reason why the threshold is low: “This threshold is a low one because to impose a more onerous burden would run the risk of the coroner determining, in advance of the full evidential picture, what the outcome of any inquest might be” (at [75]).

As to what would satisfy the test, Popplewell went on to say: “… it must amount to more than mere speculation. There must be a real evidential basis which make the suggestion of a breach of a substantive obligation by the state a credible one” (at [75]). “… different expressions (grounds to suspect, legitimate suspicion, possibility, potential, more than fanciful, credible suggestion) are, in my view, simply alternative ways of expressing a single concept of a single threshold of arguability. It is a concept similar to the domestic test for summary judgment, keeping in mind that in the article 2 investigative duty context the test often falls to be applied at an early stage when the evidence is all in the hands of the state authorities” (at [102]).

Hill J in Ferguson has confirmed that the test applies not only to assessing whether the state might have breached a substantive duty, but also assessing whether the state owed a duty under Article 2 in the first place (at [124]-[130]).

The operational duty, the Rabone ‘indicia’, and medical cases

The state has an operational duty under Article 2 where the state knows, or ought reasonably to know, of a real and immediate risk to an individual’s life, and it requires it to take such measures as could reasonably be expected of it to avoid such risk (Osman v United Kingdom [1998] 29 EHRR 245 at [115]-[116]).

The Supreme Court in Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2 considered whether an NHS Trust owed the operational duty to a voluntary psychiatric patient. Melanie Rabone had committed suicide whilst on a visit home, when she was known to the NHS Trust to be a high risk of suicide. The Supreme Court held that the operational duty was owed to take steps to protect the deceased from the suicide risk, and that duty had been breached. Lord Dyson when on to set out the “indicia” from Strasbourg authorities which can point to the existence of the operational duty:

1. There is a real and immediate risk to the individual’s life;
2. There has been an assumption of responsibility by the state for the individual’s welfare and safety, including by the exercise of control (paradigms being where the state has detained an individual, such as in prison or in a psychiatric hospital);
3. The individual is especially vulnerable by reason of their physical or mental condition (in some cases, where the individual is sufficiently vulnerable, there does need to be an assumption of control by the state); and
4. There is an exceptional risk to life, beyond an “ordinary” risk of the kind that individuals should be expected to take.

In Rabone, the deceased was an in-patient of the NHS Trust due to her risk of suicide. She was vulnerable due to her mental state, and the NHS Trust had assumed responsibility for her. Whilst not formally detained, the NHS Trust would have been able to prevent her from leaving the hospital using its powers under the Mental Health Act. In essence, the deceased’s case was effectively the same as that of a detained individual in a psychiatric hospital.

The operational duty in the medical context has been further explored in Strasbourg. In Centre for Legal Resources on behalf of Câmpeanu v Romania [2014] ECHR 789, a young man who had been diagnosed with a severe learning disability and HIV had been under the care of the state throughout his life. He displayed challenging needs, and he was transferred to several placements prior to his death. The deceased was transferred to a specialist medical and social care centre that was not equipped to deal with his mental health needs. It was unable to cope with his challenging behaviour, and he was transferred to a hospital for psychiatric treatment. The hospital, however, was unable to treat those with HIV. The decision to place the deceased at the care centre and latterly the hospital seemed to have been based on their willingness to admit him, rather than their ability to meet his needs. Further, the state was found to be aware of the poor conditions at the hospital, including a lack of heating, adequate food, medical staff, and medications. The risk to life was known because there had been several other deaths at the same hospital in similar circumstances to that of the deceased. Accordingly, the Court found that the operational duty was engaged and had been breached.

 In Lopes de Sousa Fernandes v Portugal (2018) 66 EHRR 28, it was iterated that something more than “mere medical negligence” was required for Article 2 to be engaged. The case concerned a man who died from septicaemia and the alleged failure by his treating clinicians to provide appropriate treatment. Although the Grand Chamber was discussing the systems duty, the two exceptional circumstances when Article 2 would be engaged were framed in a way which appear to draw parallels with the operational duty:

1. “where an individual’s life is knowingly put in danger by a denial of access to life-saving emergency treatment… It does not extend to circumstances where a patient is considered to have received deficient, incorrect or delayed treatment” (at [191]).  
2. “where a systemic or structural dysfunction in hospital services results in a patient being deprived of access to life-saving emergency treatment and the authorities knew or ought to have known about that risk and failed to undertake the necessary measures to prevent that risk from materialising…” (at [191]).

It was held that neither of those situations applied to the deceased, and that it was more a case of medical negligence. The court also noted, however, that: “different considerations arise in certain other contexts, in particular with regard to the medical treatment of persons deprived of their liberty or of particularly vulnerable persons under the care of the State, where the State has direct responsibility for the welfare of these individuals” (at [163]).Fernandes de Oliveira (2019) 69 EHRR 8 considered the operational duty in the context of a voluntary in-patient in a psychiatric hospital who committed suicide. As in Rabone, the duty was held to exist. It was noted that the deceased was vulnerable due to his severe mental health problems and that, despite being a voluntary patient, the hospital had the power to exercise control over him over the course of his treatment. However, the Grand Chamber held that the authorities did not know, nor reasonably could have known, that there was a real and immediate risk of suicide. On that basis, the duty had not been breached.

Finally, in Morahan, Popplewell LJ was considering whether the operational duty arose in the context of a voluntary psychiatric in-patient in a community rehabilitation unit, such that an Article 2 inquest was required. Tanya Morahan had paranoid schizophrenia and died from multiple drug toxicity during a period of agreed leave. The deceased had initially been detained under the Mental Health Act, but latterly that had been rescinded, and she remained on the ward voluntarily. She had been allowed to leave the ward previously and had returned, albeit she was late as she had decided upon an impromptu trip to Munich during her leave. It was held that there was no arguable existence nor breach of any operational duty by the state:

1. The deceased died because of an accidental overdose. There was no evidence that the NHS Trust was aware, or ought to have been aware, of that risk to her life. There was no history of accidental overdose or suicide attempts, and the deceased had been abstinent from taking drugs.
2. There was no assumption of responsibility in respect of life-threatening substance misuse. The NHS Trust’s responsibility was in respect of treating her paranoid schizophrenia, which had a history of exacerbation with substance misuse. The treatment had been successful such that detention under the Mental Health Act was no longer required.
3. She was not especially vulnerable such that it gave rise to the existence of a duty. The case was distinguishable from other cases involving psychiatric patients and a risk of suicide. The deceased’s vulnerability stemmed from her paranoid schizophrenia and, it was held, her risk of accidental overdose was unconnected to that.
4. Her risk of accidental overdose was no different to that of any recreational drug user. It was therefore not an “exceptional” risk.
5. Unlike in Rabone, there was no evidence that the NHS Trust had sufficient grounds to detain her if she tried to leave. The level of control was therefore absent.

From the above, the Rabone indicia continue to be the relevant factors to consider when considering both the existence and breaches of the operational duty by state agencies. It has typically arisen in the context of mental health patients who are at known risk of suicide and are effectively detained. The assumption of responsibility must relate to that known risk, rather than some other risk of death unconnected to the reason for their detention in the first place. Outside of mental health and suicide risk, the duty may be engaged where the state has assumed responsibility for one’s basic healthcare, but knowingly puts the individual’s life at risk by placing them in a setting that is ill-equipped to meet those needs.

Care Homes

The following cases have specifically explored when the operational duty applies in the context of care homes. Similar themes to those from the medical cases arise.

Dodov v Bulgaria (2008) 47 EHRR 41

Mrs Stoyanova, a 63-year-old woman with advanced Alzheimer’s disease, was residing in a nursing home due to her needing constant supervision and care. She was taken to a medical appointment by a staff member but, after leaving her for a few minutes, she had wandered off. She was declared missing and, by the time of the hearing in Strasbourg 11 years later, she still had not been found. The Court assumed that she had died, for the purposes of Article 2. It does not appear to have been argued that the care home owed the deceased an operational duty (presumably because they were not aware of a real an immediate risk to her life, but rather a more general risk of her absconding). It was held that the actions of the care home were comparable to allegations of medical negligence, and the Court focused on the availability of remedies for the same. No violations of Article 2 were found in respect of the care home.

Nencheva v Bulgaria (48609/06, 18 June 2013)

This case concerned 15 children and young adults who had been placed in a specialist care home for those with severe mental disabilities. They had been placed there by the state and required intensive care. They died over the winter of 1996/97 due to being subjected to extremely poor conditions in the care home. This included insufficient food, medicines, and heating. Managers at the care home had notified state officials at the highest levels, but no action was taken for several months. It was held that the operational duty did arise: the state was aware of the real and immediate risk to the lives of these children and young adults. They had failed to promptly intervene to mitigate against that risk.

Dumpe v Latvia (71506/13, 16 October 2018)

AP was a young man with Down’s syndrome and had been placed in a care home by the state. His mother alleged that the staff at the care home, particularly the medical staff, failed to provide adequate care to him. She alleged that he became weaker and lethargic in the months before his death. Three days before his death, the care home called for an ambulance due to the deceased being feeble and unwilling to eat. On admission to hospital, it was noted that the deceased was undernourished, had extensive psoriasis rashes, and was catatonic. During his admission, it was noted that he had hepatitis B, his skin conditions had likely been present for six months, and that he appeared neglected, hypotrophic, and having extreme asthenia. A criminal investigation into his death found that the deceased had died due to cardiac insufficiency, triggered by cardiomyopathy. Whilst some criticism was made of the care home for the delay in seeking medical assistance, a panel of experts had found that it was not possible to say the extent to which this had impacted on the outcome.

The Court held that Article 2 was not engaged. The complaints raised by the deceased’s mother were more akin to allegations of medical negligence. There was no suggestion that the state had unreasonably put the deceased’s life in danger by placing him in the care home (unlike in Câmpeanu and Nencheva). There was no allegation of systemic failings and the care did not fall within the very exceptional circumstances from Lopes de Sousa Fernandes. Accordingly, the complaint was not upheld.

R (on the application of Maguire) v HM Senior Coroner for Blackpool & Fylde [2023] UKSC 20

Outside of Strasbourg, Maguire considered the care provided to a 52-year-old lady with Down’s syndrome and learning difficulties. Jackie lived in a residential care home and was deprived of her liberty there, pursuant to a standard authorisation granted by the local authority. She died as a result of a perforated gastric ulcer and pneumonia. The family’s criticisms of the care home were that there were signs that the deceased was becoming unwell (she was not eating well, had a sore throat, and had diarrhoea) and they were not promptly acted upon by care staff. In brief, they did not seek medical assistance soon enough. When they eventually contacted her GP, the Deceased had become very unwell. They were (wrongly) advised that a home visit was not needed. The care home then contacted 111 the same day and paramedics attended. They wanted to take the deceased to hospital, but she refused. After consulting an out-of-hours GP, it was decided that the deceased would not be compulsorily taken to hospital. The following day, the deceased’s condition deteriorated, the paramedics attended again and on this occasion she was taken to hospital. She sadly died the same day after suffering cardiac arrest.

The Supreme Court specifically considered whether the operational duty was arguably owed by the care home, citing the Rabone indicia. It held that:

“When an individual is placed in a care home, a nursing home or a hospital the state’s operational duty in the targeted sense derived from Osman… does not involve an assumption of responsibility extending to taking responsibility for all aspects of their physical health, with the consequence that if he or she dies from some medical condition which was not diagnosed and treated in time the state’s duty is engaged and the enhanced procedural obligation in terms of accountability is triggered. Even though the individual may not be at liberty, the state is not for that reason made the guarantor of the adequacy of healthcare provided to them in all respects, with an enhanced obligation to account if things go wrong…” (at [190]).

It was emphasised that a specific risk to life needs to be identified. Whilst it could be argued that the deceased was vulnerable and the state had assumed responsibility for her care generally, it was not until she became very unwell that it could be said that the care home were aware of a real and immediate risk to life. The Supreme Court indicated that, had they taken no steps to seek medical advice at that stage, “that might well have constituted a breach of the article 2 operational duty” (at [204]). The suggestion is, therefore, that if a care home becomes aware that a resident is seriously unwell, the operational duty will be engaged to the extent that they should be seeking medical advice.

Validity Foundation on behalf of TJ v Hungary [2024] ECHR 796

TJ was a woman with a severe learning disability who had been placed in a care home by the state. She lacked capacity to make decisions regarding her health and welfare for herself, and she had been appointed a guardian to make such decisions. She was known to display challenging behaviour and was not allowed to leave the care home.

Prior to her death, the care home in which the deceased resided had been investigated by a team of monitors from the Validity Foundation. It produced a damning report, highlighting instances of unlawful use of restraint, lack of proper heating, malnutrition, and neglect. The Ministry for Human Resources then carried out its own investigation into the care home and corroborated the concerns raised by the Validity Foundation.  It found that the care home was extremely understaffed and that restraint was being used to mitigate the risk of residents, like TJ, from suffering falls and displaying aggressive behaviour. It further found that the care home could not achieve the minimum standard of living conditions. The Hungarian Commissioner for Human Rights also produced a report, which concluded that the care home lacked adequate care facilities and that human rights were being violated.

TJ was taken to hospital in August 2018, where she was diagnosed with bacterial pneumonia. She suddenly deteriorated and died before discharge. The Court agreed with the findings of the Validity Foundation that TJ’s condition had been triggered by long-term neglect at the care home.

The Court cited Nencheva and Câmpeanu in finding that Article 2 was engaged. The state was clearly aware of the appalling conditions in which TJ had been detained, and had not taken adequate protective measures to mitigate against the risk of death. In addition, it held that the state had assumed responsibility for her health and welfare, and TJ was under their exclusive control. She needed constant supervision, was unable to make decisions for herself, and she was not free to leave the care home. The Court held that it was incumbent on the state to account for TJ’s medical treatment and give appropriate explanations regarding the care she received.

Practice points

Although there is no authority that suggests that Article 2 will automatically be engaged when there is a death in a care home, the jurisprudence confirms that there will be circumstances where the operational duty will be engaged.

The Rabone indicia continue to be relevant considerations, and it can be anticipated that they can apply in a care home setting:

1. If the care home or the state more generally is aware of a real and immediate risk of death, the duty can be engaged. These could include:
   • Where the individual is seriously unwell (which should have been apparent to non-medical care staff) and the care home fail to seek medical assistance (Maguire). This would also be comparable to the first exceptional circumstance when Article 2 is engaged in a medical context from Lopes de Sousa Fernandes: a denial of access to emergency life-saving treatment.
   • Where the state is aware, or ought to have been aware, that the care home was incapable of meeting the individual’s basic care needs, such that their life was at risk (Nencheva, TJ).
2. For any resident to be detained in a care home under the Mental Capacity Act 2005, it will be because it is necessary and in their best interests. They must lack capacity to agree to the detention. Such residents are therefore likely to be regarded as vulnerable, by virtue of their physical and/or mental state.
3. By being so detained, the state will have assumed responsibility for their health and welfare in the general sense. The individual will not be free to leave and are effectively under the state’s control (TJ, Nencheva). However, assuming control over their health and welfare does not trigger a duty under Article 2 necessarily (Maguire). Arguably negligent care will not be sufficient (Dumpe, Dodov) and it should be shown that the state agency was aware (or ought to have been aware) of a specific risk to life (Maguire).

As in the medical context, it seems likely that it will only be rare that a breach of the operational duty will be found regarding care home deaths. However, for an Article 2 inquest, the court is only concerned with whether it is arguable that there has been. When considering if a death in a care home arguably engages Article 2, the following will be relevant to the coroner’s investigation:

• Is there any evidence to suggest that the care home resident was seriously unwell and care staff failed to seek any medical attention? Applying the obiter comments in Maguire, this would suggest an arguable breach.
• Is there any evidence that the state agency knew or ought to have known that the care home was not safe to meet the individual’s basic needs? For example, is there a damning CQC report? Have there been any safeguarding investigations conducted by the local authority? Was there a deterioration in the individual’s overall condition that would not be attributable to their age or a health condition that led to their placement in a care home? If the individual was placed in the care home despite there being serious concerns about its ability to meet their basic needs, it would be arguable that Article 2 is engaged (Nencheva, TJ).

Tom is a member of the inquests team and is recognised by the Legal 500 and Chambers & Partners as a leading practitioner in this field. His practice is complimented by his experience in clinical negligence, Court of Protection, and community care. He has represented various interested persons in inquests, including bereaved families, local authorities, NHS Trusts, individual practitioners, and insurers. He regularly appears in Article 2 inquests and those sitting with a jury. His full profile can be accessed here.