It is now commonplace in advance of inquests for coroners to rule on their scope, including whether possible state responsibility requires the inquest to meet the UK’s Art 2 procedural obligations. That task is not easy when the extent of Art 2 involves a complex question of law to be applied in factual circumstances that are often still to be uncovered. Added to that, the jurisprudence of the Art 2 duty is still evolving as its boundaries are repeatedly explored by the courts as new circumstances are presented for consideration.
The case of Rabone v Pennine Care NHS Trust was one such new circumstance and considered whether there was an operational duty owed under Article 2 to informal psychiatric in-patients who were not detained under the Mental Health Act. Although Melanie Rabone died when on leave outside of hospital the Supreme Court considered that the operational duties did extend to the circumstances of her case – taking account of her extreme vulnerability and the exceptional nature of the risks alongside the degree of responsibility and control assumed by the NHS Trust.
Following Rabone the question arises of whether Article 2 procedural obligations might be engaged after the death of a person who is a mental health patient receiving care in the community. In this blogger’s experience several coroners (and NHS Trusts facing civil claims) have since accepted that an Art 2 duty can be owed to a community patient, particularly where the alleged shortcomings include a failure to admit a vulnerable person who was at obvious and imminent risk of suicide. However until recently no challenge to a coronial decision on the application (or non-application) of Art 2 at a community patient’s inquest has been reported from the higher courts.
The applicant in R (Lee) v HM Assistant Coroner for Sunderland has now invited an important extension of the law beyond Rabone. However, if you are hoping for clear or simple answer to this vexed question be ready for disappointment. To paraphrase this very lengthy extempore judgment – delivered by HHJ Raeside QC after hearing two days of legal argument – it is all very complicated and will always depend on the facts.
Mrs Lee’s daughter, Melissa had suffered with emotionally unstable personality disorder for some time and had a number of voluntary and compulsory admissions to hospital. She had taken several of overdoses and also suffered physical harm, requiring treatment in A&E. Melissa lived in her own home but was under the care of an NHS mental heath team. There was a structured programme of care intended to enable Melissa to live in the community without constant supervision; a crisis management plan was also in place.
Four days before her death Melissa attended A&E. The crisis team assessed her and considered her to have a moderate risk of self-harm which did not justify readmission to hospital, which was her wish. That decision was affirmed by a consultant psychiatrist. Three days later Melissa was again treated at A&E as a result of an overdose but requested and was allowed to discharge herself home. Her father visited her at her home but felt assured and so left her. The next morning Melissa was found dead from a drug overdose.
The Assistant Coroner’s Art 2 decision
The Assistant Coroner did not accept Mrs Lee’s submission that there were arguable breaches of substantive operational and systemic Art 2 ECHR duties owed to Melissa so as to require an ‘Art 2’ inquest.
Mrs Lee alleged there had been systemic failures regarding the adequacy of Melissa’s care plan particularly in relation to the availability of specialist residential services, whether it was appropriate for Melissa to reside alone and the adequacy of the plan to manage the risks that arose if she did. However, when specifically asked about the arguable evidence of the failure of the system none was provided. Indeed, it was agreed during the later Judicial Review hearing that, ‘there was no such information’, in regard to the system itself. Unsurprisingly then the Coroner was not persuaded of any arguable systemic failure.
As to the operational duty, the Coroner noted that Rabone had extended the operational duty to mental health patients who were not detained under the Mental Health Act having considered extreme vulnerability, the exceptional nature of the risks, and also the degree of responsibility and control assumed in that case. The Coroner stated, however, that she did not find that the operational duty arose in Melissa’s circumstances because “the Trust has not assumed control or responsibility in that regard of the word, and therefore there can be no breach.”
The judicial review application
With a scatter-gun loaded with nine grounds, Mrs Lee brought judicial review proceedings. Permission was initially refused on paper, although when the application was renewed permission was given on one ground, refused for two others and adjourned to substantive hearing on the six remaining grounds. An appeal of that permission decision was refused.
In essence the substantive complaint was of irrationally in the Coroner’s findings: Mrs Lee argued that Melissa’s vulnerability, the level of risk and an assumption of responsibility for Melissa gave rise to an Art 2 operational duty towards her, and that furthermore there had been failures or inadequacies in care planning and discharge planning, that could entail a breach of the systemic Art 2 duty.
No systemic failures
On systemic failures, all parties accepted that the leading case was now Fernandes de Oliveira v Portugal although there was some dispute as to its interpretation.
The Coroner had been dismissive of the case based on systemic failure as the Trust had a care planning system in place. In the event that such evidence did become available, the Coroner had said she would keep an open mind, and had been prepared to revisit the matter.
Accordingly, the judge stated that the Coroner was “quite right” to come to that conclusion, where there was no evidence of inadequacy of the provision for securing high professional standards among health professionals for the protection of Melissa’s life. In the absence of any evidence of a flawed system of care (as opposed to failure to operate a system that was in place) the grounds for review based on alleged systemic failure were dismissed as unarguable
The question in respect of an operational duty was, however, more complex. The core issue being whether the facts arguably supported a further extension of Rabone. In the Supreme Court Lord Dyson had analysed the potential engagement of the operational duty by reference to the threefold factors of assumed responsibility, vulnerability and risk when he had stated (at §34)
“..if there was a real and immediate risk of suicide at that time of which the Trust was aware or ought to have been aware, then in my view the Trust was under a duty to take reasonable steps to protect Melanie from it. She had been admitted to hospital because she was a real suicide risk. By reason of her mental state, she was extremely vulnerable. The Trust assumed responsibility for her. She was under its control. Although she was not a detained patient, it is clear that, if she had insisted on leaving the hospital, the authorities could and should have exercised their powers under the MHA to prevent her from doing so. In fact, however, the judge found that, if the Trust had refused to allow her to leave, she would not have insisted on leaving. This demonstrates the control that the Trust was exercising over Melanie.”
It appeared to the judge that the Coroner had accepted that threefold test as a matter of law, but in coming to her decision had focused almost exclusively on the question of assumption of responsibility, which she had equated to the concept of whether there was “control” over Melissa. In making this her sole concern on the question of the assumption of responsibility, the judge said the coroner had erred. Her decision set out no coronial review of the case on the basis of Melissa’s risk and vulnerability.
The Assistant Coroner should have another go
As the judge noted, the question of whether the state has assumed some degree of responsibility for the welfare of an individual will sometimes require a fine distinction with each case so uniquely turning on its own facts. It was usually the function of the coroner to draw that balance based on appropriate findings of fact and the judicial review court would then only interfere on grounds of irrationality or error of law.
However, the difficulty HHJ Raeside QC now faced was that the necessary factual finding process had not yet been undertaken by the Coroner. Without knowing facts he could not necessarily say that the Coroner had come to an incorrect ultimate decision and, sitting as an Administrative Court judge, he was understandably reluctant to step into the role of primary fact finder himself.
In the circumstances the judge held that it would be wrong to quash the Coroner’s decision in the absence of any analysis of the relevant facts going to Melissa’s vulnerability and risk. Instead the judge decided to remit the case back to the Coroner. A further and necessary factual finding process could then be undertaken with both parties given the opportunity to set out their factual case on vulnerability and risk as well as the assumption of responsibility. The Coroner could reconsider all the relevant factors individually and cumulatively, to form a better platform on which to then apply the law.
It is all very complicated and will always depend on the facts.
Where does this leave the rest of us?
In conclusion then, there is little in this judgment that assists anyone looking for the essential features of those cases where the Art 2 operational duty might be engaged following a death in the community. Perhaps that is unsurprising when such decisions that will always be extremely fact sensitive. (Although the Assistant Coroner’s remade decision which can be found here is an elegant exposition of how to apply the law to the facts)
The Supreme Court decision in Rabone still remains the best guidance for those facing similar questions. The essential points made by Lord Dyson can be summarised as follows:
- No decision of the ECtHR clearly articulates the criteria by which it decides whether an Art. 2 operational duty exists in any particular circumstances;
- The existence of a “real and immediate risk” to life is a necessary but not sufficient condition for the existence of the duty;
- the operational duty will be held to exist where there has been an assumption of responsibility by the state for the individual’s welfare and safety (including by the exercise of control);
- the vulnerability of the victim is a relevant consideration. In circumstances of sufficient vulnerability, the ECtHR has been prepared to find a breach of the operational duty even where there has been no assumption of control by the state;
- the nature of the risk is relevant, particularly whether it is an “ordinary” risk of the kind that individuals in the relevant category should reasonably be expected to take or is it an exceptional risk;
- the above factors are indicia which point the way for determining whether the operational duty exists in any given circumstances. But they do not necessarily provide a sure guide as to whether an operational duty will be found by the ECtHR to exist in circumstances which have not yet been considered by the court.
The assistant coroner reconsidered the matter and decided again that Article 2 obligations were not engaged. Although, as a decision by a coroner, the reasoning has no precedential weight, those reasons attached here are well worth reading for their detailed exposition of the application of Art 2 to inquests and a clear example of how to apply the indicia in Rabone to the facts of a particular case.
 That is an inquest complying with the enhanced procedural obligations under Art 2 ECHR of a proactive and effective investigation characterised by: independence; transparency & public scrutiny; sufficient involvement of the bereaved; accountability and timeliness.
  Inquest Law Reports 197. An ECtHR case concerning the absence of a system of monitoring or safeguards for a voluntary hospital in-patient known to be prone to leaving the hospital and at a known risk of suicide.
 at §21-25
Claire Watson of Serjeants’ Inn appeared on behalf of Northumberland Tyne & Wear NHS Foundation Trust who were an interested party in the application.