Key facts

  • Even a series of errors by healthcare staff does not engage Article 2 if these are individual failings rather than systemic
  • Where a person is under a DOLS but is not otherwise imprisoned or detained, the line between state responsibility or not will be a fine one – but a very vulnerable adult who is ‘totally dependent’ and under a DOLS still does not necessarily meet the threshold


This case concerned JM, a 52 year old with Down’s syndrome and learning disabilities who tragically passed away in hospital. Prior to her death, JM was a vulnerable adult who was totally dependent on staff at her care home for day-to-day care. JM was under a DOLS. She became ill and there was a series of failing by healthcare staff, including a failure to make a home visit, failures to triage properly or elicit a full history from carers, poor telephone advice and poor liaison with ambulance services.

At the inquest, the coroner decided that the failings were attributable to individual actions and did not require the state to be called to account under Article 2 ECHR.

JM’s mother brought a judicial review challenging that decision.

The court held that the series of errors from healthcare professionals caring for JM were attributable to individual actions and so did not mean Article 2 was engaged.

Furthermore, despite JM being a vulnerable person for whom the state cared (under a DOLS), this did not mean the state had ‘assumed responsibility’ for JM and so Article 2 was not engaged on that ground either.

This case is helpful in reiterating that even a series of errors does not necessarily engage Article 2 unless these errors can be considered ‘systemic’.

The case is also helpful in reiterating that even a very vulnerable person, under a DOLS and receiving significant health and social care input, is not necessarily a person for whom the state has ‘assumed responsibility’, so that Article 2 would fail to be engaged – even though in some of these cases it is a very fine line.