Medical cases and ever-expanding Art 2 obligations

Devall & Corcoran v Ministry of Justice [2022] EWHC 1608 (QB).  23 June 2022 (judgment here)

An appeal from a refusal to strike out a civil claim might not look immediately relevant for coronial law, but Mr Justice Soole’s detailed analysis of whether there is at least an arguable Art 2 operational duty to obtain healthcare for someone who was vulnerable but was not in state detention makes essential reading: revealing, as it does, how the boundaries of Article 2 are still being explored as new factual scenarios arise.

The background

The deceased in this case was a 28-year-old man, who had recently been a prisoner but had been released on licence a month earlier.  He was living in an Approved Premises[1] under a night-time curfew as a condition of his licence. On the day of his death the staff had tried to rouse him from his bed several times over a two hour period by clapping their hands and shouting his name and shaking him, but all to no avail.  Despite his family phoning the premises and inquiring after him he was left undisturbed by staff for another four hours. When eventually someone thought to get him some medical attention it was far too late, he was only just alive, and sadly soon stopped breathing. A 999 responder could not revive him, he had died from the natural cause of pneumonia.

A civil claim was brought alleging a breach of the systemic and operational duties under Article 2. It was said that the Defendant had failed to take reasonable operational measures which would have had a significant chance of preventing this death. These included staff seeking emergency medical treatment for him when they were initially unable to rouse him.

The Defendant responded with strike out application, brought inter alia on the basis that Art 2 obligations could not arguably arise in a case concerning the medical care of a person living in the community. When the first instance judge refused that application the Ministry of Justice appealed.

In an inquisitorial process an open mind is not an empty one

R (Gorani) v Assistant Coroner for West London [2022] EWHC 1593,  22 June 2022 (judgment here)

A complete smorgasbord of complaints were adjudicated upon in this recent High Court decision, with the coroner victorious on every point. There is much in the judgment for the reader to feast upon: the headline tasters served up by the Divisional Court are that –

  • The Article 2 general duty is not concerned with individual errors within an adequate system;
  • Article 2 being engaged by one aspect of a case does not mean every aspect of the case must be investigated by applying the Art 2 standards;
  • A coroner interjecting in counsel’s questioning is not in itself a demonstration of bias by a coroner who is entitled to properly manage the progress of evidence;
  • For an error of fact to be justiciable in law it must not only be mistaken, but established uncontentiously and be a material part of the reasoning. Simply disagreeing with a coroner’s conclusions on the appropriate inferences to be drawn from the facts is an inadequate ground for Judicial Review;
  • A coroner need not hear any submissions of IPs regarding PFD matters, it will often be helpful to invite submissions, but there is no obligation to do so
  • Judicial Officer holders should think twice before they enter the fray. Their reasoning should be apparent in their initial decision and not need explaining to the court in an ex post facto witness statement

Perhaps most importantly this judgment is a reminder that the inquisitorial nature of an inquest means that a coroner is entitled to robustly inquire into the evidence and is not required to blandly accept any witness’ assertion without testing it.

Coroners are entitled to form preliminary views on the basis of the evidence they have read and heard, and to test that against the witnesses’ oral evidence. What were said by the Claimant to be ‘leading questions’ of a witnesses by the coroner, were, in the view of the court, a legitimate approach of seeking to understand a witness’ evidence, by summarising it, testing it and putting it in context. There can be no complaint about a coroner conducting an inquisitorial process asking any such questions. As the court put it “the coroner was obliged to approach the inquiry with an open mind, but not with an empty one”.

Disentangling the general Article 2 ECHR duty

R (Patton) v Assistant Coroner for Carmarthenshire & Pembrokeshire [1] [2022] EWHC 1377 (Admin) (here) 7 June 2022.

Consideration of the, still evolving, Art 2 procedural duty in respect of inquests will often demand an intricate analysis of several different strands from judicial precedents that then need to be woven together to establish a nuanced legal tapestry. The difficulty facing the Coroner in this case was that the interested persons had, rather unhelpfully, managed to weave those threads into a complicated web of such knotted complexity in their own submissions that, in ruling on the issue, the Coroner also got himself into a tangle. It required the incisive brain of Mrs Justice Hill to disentwine the arguments and clarify what would be required to engage the Art 2 general systems duty in respect of a vulnerable child who had died in the community.

This is the first judgment on an aspect of coronial law to be handed down by one of our newest High Court judges who not only sat as an assistant coroner but spent a large part of her professional life at the bar appearing for interested persons in inquests. With its helpful exposition of how the general systemic Art 2 duty might potentially arise, Hill J’s judgment provides valuable clarification for all inquest lawyers. For Coroners it is also a useful reminder that you may well need to look further than the arguments being put before you by counsel when coming to your own view on Art 2’s application.

Here the Coroner made a PIRH ruling against the bereaved family’s submissions that Art 2 was arguably engaged. Unfortunately, the submissions before the Coroner focussed on matters which (as Hill J found) were not required for the determination of the Art 2 issue, unnecessarily complicating the picture. It was not necessarily that the Coroner had arrived at the wrong Art 2 decision, but, given the matters he addressed and the limited explanation of the reasons why he had found as he did, the Coroner now needed to go back and make his Art 2 decision all over again with the correct legal test in mind.

More Data on Death: Coroner Statistics Annual Bulletin for 2021

Today, the Ministry of Justice published the most recent Coroners Statistics Annual Bulletin. It covers deaths between January and December 2021 and therefore, as last year, the effects of the Covid pandemic can still be seen throughout.

The Bulletin remains a useful guide on the workload of coroners around the country and can be used to identify patterns and trends in inquest conclusions and times taken for cases to be heard.

This post sets out key figures from the bulletin.

Do buttered parsnips taste better? Publishing coronial conclusions

R (Ture) v Senior Coroner for Manchester North [2022] EWHC 1027 (Admin) 4 May 2022 (Judgment here)  

 

It is not really the substance of this permission decision that is of most interest to this blogger…

…Spoiler Alert:  the Senior Coroner had done a really good job of expressing her conclusions in what had been a very difficult case both evidentially and legally,  and the claim that she had (i) wrongly limited the scope of her inquiry; (ii) given inadequate reasons and (iii) arrived at an unreasonable and unjustified conclusion had no realistic prospect of success[1]

Rather, what is notable from the judgment is the consternation expressed by a High Court judge on his discovering that the coronial findings of fact, the reasons for the conclusions reached by a coroner and the Record of Inquest document are not normally made easily available to the public.