Inquest juries, DOLS and the law of unintended consequences

Written by: Bridget Dolan KC
Published: 31 January 2017

R (Ferreira) v HM Senior Coroner South London [2017] EWCA Civ 31, 26.1.2017

Reading about the 1888 Victorian Railway Commissioners case when studying for the bar I always wondered what it might look like if the ‘floodgates’ so fiercely guarded by judges in those old judgments were actually prised open. Well now I know.

The combination of the Mental Capacity Act ‘Deprivation of Liberty Safeguards’ and the Supreme Court’s 2014 Cheshire West[1] decision have produced a legal tsunami that has deluged the Court of Protection. This has been followed very closely by a smaller but equally damaging tidal wave that inundated Coroners’ Courts once holding an inquest into the death of any person who was the subject of a MCA DOLS authorisation was deemed mandatory.

If the appellant had won this present case, and a death in a NHS hospital due to the physical illness of someone lacking capacity had amounted to a death when deprived of liberty (so in state detention), and therefore required a jury inquest, then the already swamped Coroners Courts might have finally submerged.

Happily, however, the watery metaphors can now dry up, as a combination of the Policing and Crime Bill (soon to be given Royal Assent) and the Court of Appeal’s most recent common sense judgment in the Ferreira case have firmly rebuilt the levee around the Coroners’ Courts, handing a few sandbags to the Court of Protection at the same time.

More Art 2 Inquests required after public bodies’ regulatory failures?

Written by: Bridget Dolan KC
Published: 23 January 2017

Cevrioğlu v. Turkey, ECtHR (Application no. 69546/12), 4.1.2017

Coroners feeling relief that amendments to the Policing and Crime Bill will mean that the burden is about to be lifted from them of conducting inquests after any death of a person subject the Mental Capacity Act DOLS provisions might wonder if their workload will nevertheless increase following this recent judgment of the European Court of Human Rights (ECtHR) that clarifies that the ambit of Art 2 covers failures in the state’s regulatory oversight of private companies’ actions. Where there are arguable grounds to suspect such a regulatory failure that would otherwise have ameliorated a risk of death an Art 2 inquest may now be required.

Where there are arguable grounds to suspect a regulatory failure to ameliorate a risk of death an Art 2 inquest may now be required.

The facts of the case are tragic: in 1998 the applicant’s ten-year-old son, and his friend were found drowned after falling into a 2 metre deep water-filled hole on a construction site where they had been playing near their home. The construction site was the responsibility of a private company, however construction permits had been issued by the Municipality of Antakya which could also issue warning and enforcement notices if unsafe practice was revealed.

When the domestic courts failed to provide a remedy for the applicant’s claim against the Municipality, for failing in its responsibilities for inspecting the work, he applied to the ECtHR for redress. The ECtHR held unanimously that there had been a violation of his substantive and procedural rights under Art 2 ECHR and awarded EUR 10,000 in damages.

Inquest reveals Police and IPCC failings

Written by: Bridget Dolan KC
Published: 17 January 2017

R (IPCC) v IPCC [2016] EWHC 2993 (Admin), 25.10.2016

The value of a Coroner’s inquest in opening up matters to public scrutiny is clearly demonstrated by this highly unusual application by the Chief Executive of the IPCC who, following a searching inquest, brought proceedings against his own organisation to overturn its flawed report into police conduct.

Jordan Begley died following contact with police during which a Taser had been used and he had been restrained. Police officers had been called to his house by his mother, who was concerned that Jordan might become violent. He had been drinking and was upset about having been accused by others of stealing a handbag. His mother said that he had a knife and he wanted to go outside to confront his accusers. A number of officers arrived at the scene and a Taser was used. Once tasered, Mr Begley fell to the floor and was restrained face-down. In the course of bringing him under control, one of the police officers delivered two strong punches as “distraction strikes” to Mr Begley’s back to enable him to be handcuffed. It shortly became clear that Mr Begley was very unwell and despite being taken to hospital, tragically, he died shortly thereafter.

The IPCC report into the incident, which was available to the inquest, had found that no officer had any case to answer for misconduct or gross misconduct. The inquest jury did not agree.

The inquest jury reached a narrative conclusion that was far more critical than the IPCC report, finding that:

Mr Begley had died from a stress-induced cardiac arrest;
the use of a Taser was “not reasonable”;
the length of time for which the Taser was deployed (over 8 seconds) was not reasonable;
there was no need for a police officer to have punched Mr Begley twice;
the police had not been sufficiently concerned with Mr Begley’s welfare once he was handcuffed; and
failings by police officers had materially contributed to the death.

In light of the inquest findings the IPCC reviewed its own investigation and found errors in its own guidance and the independent investigation report

In the face of such public criticism of police actions it was clear that the IPCC report needed to be reconsidered, but the only mechanism to do so was for the Chief Executive to bring judicial review proceedings against his own organization, so as to quash a report and enable a fresh investigation to take place. That claim was opposed by the police officers involved.

Assessing complex inquest evidence: What if a different coroner might take a different view?

Written by: Bridget Dolan KC
Published: 12 December 2016

McDonnell v Assistant Coroner for West London [2016] EWHC 3078 (Admin), 6.12.2016

Leo McDonnell died due to a fatal cardiac arrhythmia. At the time of his death he was prescribed nine items of medication including citalopram, amitriptyline, quinine and codeine. To prescribe citalopram alongside some of these drugs was contraindicated and his prescribed daily dose of citalopram was higher than the recommended maximum. There was a factual dispute between the treating doctors and the claimant regarding these prescriptions. In summary the doctors stated that they had explained the serious risk to the heart and risk of death to him in straightforward terms. The claimant’s evidence was that the doctors had spoken in medical jargon and failed to convey that there was a serious risk. Her position was that the prescribing doctors should not have shifted responsibility by asking the deceased to consent to the continuing over-prescription.

There were two main candidates for the cause of Mr McDonnell’s death. The first was the mixture of medication he was taking and the role of the 15 codeine tablets he had taken on the day of his death. The second was a vaso-vagal event. The Assistant Coroner found that the death was from a combination of both potential causes, citing a “fatal cardiac arrhythmia triggered by a vaso-vagal event in the presence of excessive codeine, together with citalopram, amitriptyline and quinine at levels consistent with prescribed medication.” She concluded the death was by “misadventure”.

Mr McDonnell’s widow was not satisfied with these findings or the narrative conclusion and so applied under s.13 Coroners Act 1988 to quash the inquest. She argued that the coroner was not entitled to have found that an overdose of codeine contributed to death, as this was inconsistent with the post mortem evidence, nor to have found that the deceased had given his consent to the citalopram being prescribed alongside the other contraindicated medication.

Her challenge failed:

“That a different coroner might take a different view of the evidence does not mean that it is in the interests of justice to hold a new inquest.”

Inquests, Coroners and Secrets: the latest word

Written by: Bridget Dolan KC
Published: 30 November 2016

Secretary of State for the Home Dept v Senior Coroner for Surrey [2016] EWHC 3001 (Admin) 23.10.2016

Senior Coroners still smarting from being described as holding “a relatively lower judicial office” by Mr Justice Singh in the Norfolk Coroner v AAIB case last month have now been dealt a second blow by Cranston J when he made it very clear that not only are Senior Coroners, as a category, not among those able to see sensitive material related to issues of national security, but that the Secretary of State can rely upon the assertion of a general policy not to provide Coroners with such material and so does not have to provide any evidence that disclosure to the particular Coroner will in itself result in a real risk of serious harm to national security.

When Alexander Perepilichnyy, a Russian national, died suddenly in November 2012, while jogging near his home in Surrey, the circumstances aroused suspicion in some as to whether he had been unlawfully killed by agents of the Russian state due to his alleged role in helping to uncover a major fraud.

During the course of his investigation into Mr Perepilichnyy’s death, the Senior Coroner had issued requests for evidence directed at the Security Service and the Secret Intelligence Service.

In an “unprecedented” application the Secretary of State applied to the High Court for an order permitting the non-disclosure of documents to the Senior Coroner in the inquest proceedings on the ground that such disclosure would damage the public interest.

The Secretary of State had refused to allow the Senior Coroner, who did not have developed vetting (‘DV’) security clearance, to view the original material. Although the Senior Coroner accepted that there was material which he was not able to review because of its sensitivity; he had appointed DV security cleared counsel who the government agreed could view the information and provide an anodyne gist to him. The confidential gist was prepared at a level of generality to enable the Senior Coroner to consider the material with his counsel. The Secretary of State then made a PII application in respect of the gist, but the Coroner considered that the submissions made on he behalf in relation to the application were inadequate, as they were not supported by evidence. The Senior Coroner informed the Secretary of State that he required a PII application by way of a Ministerial certificate; a Ministerial certificate was duly provided however rather than being limited to the gist it covered the entirety of the material which meant that the Senior Coroner was unable to see it, consequently he was unable to determine the PII claim.

The Senior Coroner accepted that he could not now determine whether the PII claim was properly made because he needed to see the disputed material in order to conduct the balancing exercise required. The question for the High Court was whether that Court should exercise its jurisdiction to consider the Secretary of State’s PII application in the circumstances.