The Joint Select Committee on Human Rights Enforcement – Inquest Strand

Written by: Katie Gollop KC
Published: 8 March 2018

On 7 March 2018 Katie Gollop QC gave oral evidence to the Joint Select Committee on Human Rights in support of the provision of public funding for families at inquests.

http://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/

A briefing paper provided to assist the committee, which was prepared by Katie in consultation with some other barristers from Serjeants’ Inn chambers, is reproduced below

All barristers at Serjeants’ Inn Chambers are independent, self-employed, sole practitioners. For that reason, Serjeants’ Inn does not have a collective view and the views expressed here are personal. That said, a number of barristers (including two who sit as Assistant Coroners) have contributed thoughts and/or provided examples of inquests (see the appendix at the end) that inform the question: are human rights being enforced in the coronial justice system?

IF THE DECEASED IS BEYOND JUSTICE, WHY DOES AN INQUEST MATTER?

Inquests, properly conducted and where the conclusions are heeded by those with the power to effect change, save lives.
They hold organisations and individuals to account publicly. They expose wrongdoing by the state. They identify and record the facts.
In so doing, inquests:

1. enable next of kin to understand what happened. And having understood, to grieve.
2. dispel rumours and conspiracies.
3. promote public confidence in state agencies – that there was no wrongdoing or that lessons have been learned so no one else will die in the same circumstances.

Lives are saved by the inquest:

1. Identifying defective systems, policies and procedures.
2. Identifying individual and organisational practice that is lacking.
3. Reporting areas where change is required to prevent future deaths.
4. Providing publicly available information about the circumstances of deaths so that patterns and clusters can be seen.
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Article 2 inquest not required if only a “mere error or medical negligence”

Written by: Liam Duffy
Published: 5 February 2018

Lopes de Sousa Fernandes v Portugal (Application no. 56080/13), ECtHR Grand Chamber, December 2017

The ECHR Chamber judgment in Lopes (15 December 2015) had the potential to expand the situations where a Middleton style “Article 2 inquest” would be required. The Chamber judgment appeared to widen the scope of Article 2 protections to incorporate errors of judgment on the part of health professionals and miscommunication between hospital departments. If poor judgment calls and miscommunications were now to be considered a substantive breach of Article 2 then many hospital deaths would require an inquest fully compliant with Middleton principles. It was perhaps only the unavailability of the judgment in English that held back the flood[1].

If poor judgment calls and miscommunications were now to be considered a substantive breach of Article 2 then many hospital deaths would require an inquest fully compliant with Middleton principles.

However, the Grand Chamber of the European Court of Human Rights (“the Court”) has now reversed the previous Chamber judgment and held, by a 15:2 majority, that there was no violation of the substantive limb of Article 2 in respect of ‘merely’ negligent hospital treatment.

The judgment provides important clarification on substantive Article 2 claims and would appear to limit such claims in the healthcare sphere to cases of a denial of life-saving treatment caused by systemic/structural issues rather than individual error. The Court has now made clear that “mere error or medical negligence” is not sufficient[2].

The case however remains of relevance for inquest practitioners as the Court upheld the finding that there had been a violation of the procedural limb of Article 2 owing to the delay in implementing the extant state structures to investigate the death.

Resuming an inquest after a criminal conviction: Art 2, informal patients and the investigatory obligation

Written by: Bridget Dolan KC
Published: 27 October 2017

R (Silvera) v Senior Coroner Oxfordshire [2017] EWHC 2499 Admin

Inquests play an essential role in ensuring public accountability when our hard pressed public services don’t always manage to get things right. That inquests allow for the full involvement of the family when publicly exploring the facts and coming to the understanding of what has happened is one of their most important features. The independence of the Coroner (or jury) when reviewing the circumstances of a death is crucial; as is the Coroner’s power to then notify any concerns to those who can take steps to make things safer for us all in the future.

Against that background it should, perhaps, not even need the added impetus of Art 2 ECHR to understand why some deaths are crying out for a publicly held independent investigation. Whilst the coronial jurisprudence around Art 2 ECHR and the investigative obligations that flow from it can be complex, it is hard for the outside observer to discern why the Senior Coroner in this present case was not even persuaded that Art 2 ECHR was engaged, let alone that an inquest was then required to satisfy the State’s investigatory obligations.

The facts

The bare facts are that a woman, who all accepted was mentally unwell, had absconded from a psychiatric hospital by jumping out of a window just one day after the decision had been made to change her status to that of an informal patient (and so not continue with her detention under the Mental Health Act 1983). The woman had also absconded the previous month, and at that time the staff had told police the woman was “very unwell” and “at risk of causing violence”. On this second occasion the police were again asked for assistance to return her to hospital and were told that the staff believed the patient “might do something” and “may be holding [her mother] hostage”. Yet she was nevertheless left in the community un-assessed for a further five days. At some point during that period she killed her mother.

Engaging Art 2

Even a cursory reading of Rabone and Sargantson[1] would suggest it was at very least arguable that the state’s Art 2 obligations were engaged here, given the involvement of these two public bodies – and particularly as an internal NHS inquiry had already pointed to a number of shortcomings in the patient’s care and risk assessment. Indeed the Chief Coroner, who gave the decision of the High Court, seems to have felt it was so abundantly clear that Art 2 was engaged that he didn’t even bother wasting any space in his judgment explaining why[2].

The Senior Coroner, however, did not accept that Art 2 was engaged and further, even if it was, did not agree that resuming the inquest was required in the context of a guilty plea and the public bodies’ having already conducted their own investigations.

As the Chief Coroner has now made abundantly plain: where there has not already been an independent investigation of a death that has allowed for the proper involvement of the family and with a sufficient element of public scrutiny, then the inquest must be the vehicle to achieve this.

How to go about challenging a PFD report: Not by Judicial Review

Written by: Bridget Dolan KC
Published: 10 October 2017

R (Dr Siddiqi and Dr Paeprer-Rohricht) v Asst. Coroner for East London [2017] Admin Court CO/2892/2017

Making a report that may prevent future deaths (a ‘PFD report’) under reg. 28 of the Coroners (Investigation) Regulations 2013 is an important but often misunderstood coronial power.

The issuing and receipt of a PFD report entails no more than the Coroner bringing some information regarding a public safety concern to the attention of the recipient. A PFD report is not punitive in nature, despite some interested persons construing it as such. It engages no civil or criminal right or obligation on the part of the recipient other than the obligation to respond to the report in writing within 56 days. The nature and content of that response is wholly a matter for the recipient. In their response the recipient can choose to agree or disagree with matters within the report or rebut any determination of the facts that is expressed by the Coroner. The recipient can object to or accept the invitation within the PFD report to take action, and could even choose to respond by expressing the view that no action is required to allay the Coroner’s unwarranted concerns.

The appropriate remedy for those wishing to take issue with the content of a PFD report is to respond to the report.

Against that background it is unsurprising that a recent attempt to Judicially Review a Coroner’s decision to issue a PFD report has fallen at the first hurdle

Should Senior Coroners need to seek the Attorney General’s permission under s.13?

Written by: Bridget Dolan KC
Published: 6 October 2017

Re HM Senior Coroner for North West Wales [2017] EWHC 2557 (Admin)

When unidentified human remains were found on a Welsh beach in 1994 the cause of death was unascertained: the inquest returned an open verdict with the deceased unknown. However, tissue samples had been retained and advances in forensic science had recently allowed a DNA profile match to the brother of a woman who had disappeared in 1994. The circumstantial evidence strongly indicated that the deceased was his missing sister.

It must have been beyond question that these new facts and evidence made a further inquest that would now properly identify the deceased both necessary and desirable in the interests of justice. The problem facing the Senior Coroner was that because an inquest had already been held the coroner was “functus officio” and had no power to quash the original inquest.

The cumbersome mechanism under s.13 Coroners Act 1988 for quashing a previous inquest now had to be followed to allow a fresh investigation to commence under s.1 CJA 2009. This involved the Coroner first making an application to the Attorney General, waiting for his authority to be given (under a fiat) before an application to the High Court under s.13(1)(b) could be made.

Is it seriously considered that a Senior Coroner’s own application will ever be unmeritorious?

It is no surprise that the A-G, followed by Lord Justice Treacy and Mr Justice Dingemans all readily agreed to a fresh inquest being held. Perhaps the only surprise is that it required a Divisional Court of two judges to consider the matter.

This case is yet another example of time and money being unnecessarily spent before the obviously correct thing can be done. A s.13 application to the High Court can only be made “by or under the authority of the Attorney-General”. It is not unknown for obtaining that permission to take over 4 months in the most simple and clear of cases.

Permission stages in court applications, such as the fiat required here, are of course a good mechanism for weeding out frivolous, ill-founded or unmeritorious applications at an early stage. But is it seriously considered that a Senior Coroner’s own application will ever be unmeritorious? The delay inherent in the fiat process merely extends the waiting for families and increases administrative costs for coroners. The time must have come for revision of the legislation so that a Senior Coroner no longer needs the Attorney General’s permission to make a s.13 application.