Dove v Assistant Coroner for Teesside  EWCA Civ 289 (here) 17 March 2023
In Middleton the House of Lords considered that a coroner determining ‘how’ a person died in a non-Art 2 inquest need only determine ‘by what means’ they died and not the broad circumstances . But what does ‘by what means’ actually mean? The answer seems to be, as Alice found in Wonderland:
“When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.”
It seems, from this most recent decision of the Court of Appeal, that coroners are still to be the master of the scope of their own inquest, but when deciding what ‘by what means’ means, causative relevance and the interests of justice must be their guide.
Jodey Whiting, who had a history of mental health problems, including depression, drug dependence and emotionally unstable personality disorder, had died as the result of suicide having taken an overdose of prescription medication. Ms Whiting was in receipt of Employment and Support Allowance (‘ESA’) and it was known to the Department for Work and Pensions (‘DWP’) that not only was she vulnerable, but (through answers to a DWP questionnaire) that she had previously had suicidal thoughts. At her inquest the claimant, Ms Whiting’s mother, expressed the view that the cessation of Ms Whiting’s ESA, her housing benefit and council tax benefit had contributed to the mental distress that had led to her suicide.
The coroner made no formal determination about this aspect of the case, having concluded that the DWP’s actions fell outside the scope of her investigation. She held that Art 2 procedural obligations were not engaged and that it was not her function to question any decisions made by the DWP. Although on returning a suicide conclusion the coroner did note within her factual findings that “Jodey had her ESA claim turned down in the weeks before her death, and her family believes, that this caused extra stress that was a contributing factor in her death.”
Since the inquest, two pieces of evidence have been obtained by the claimant: first, a report from an Independent Case Examiner (the ‘ICE Report’) which found several shortcomings in the handling of Ms Whiting’s case by the DWP before she died (the DWP now accepted that the benefits should not have been stopped); second, an expert psychiatric report that expressed the opinion that there was likely to have been a causal link between the DWP’s failings (and consequent cessation of benefits) and Ms Whiting’s state of mind immediately before her death.
In the light of this fresh evidence Mrs Dove had sought a fresh inquest under s.13 Coroners Act 1988.
The Divisional Court’s decision
The Divisional Court (see our blog here) dismissed the s.13 application, finding that ‘how’ Ms Whiting had died had been properly established and recorded at the brief inquest.
The Divisional Court considered that the question of how someone died in a Jamieson inquest was directed only to the means by which the deceased died, and did not encompass the wider circumstances of their death. The Divisional Court’s view was that:
(1) the psychiatric report did not alter the position as it postulated a probable causal link between the DWP’s failings and Jodey’s state of mind immediately before her death, but did not establish a causal link with the death itself; and
(2) Art 2 obligations were not engaged, as there was no operational duty owed to Ms Whiting as: (i) the DWP had not assumed responsibility for her; (ii) her vulnerabilities were not exceptional; and (iii) the risk to her life by suicide was of long-standing. Further, there was no arguable breach of the Article 2 systems duty because the DWP’s failings had been individual in her case and not structural or systemic in nature.
The case put before the Court of Appeal was different from, and narrower than, that put forward in the Divisional Court. It was no longer asserted that the coroner needed carry out an inquiry into the DWP’s systems and policies. It was accepted that the ICE report had now done that.
Rather Mrs Dove argued that the Divisional Court had: (1) adopted the wrong approach to causation by looking at whether the DWP’s failures directly caused Jodey’s death, when the central question was whether those failings were a more than trivial cause of her mental health deterioration (accepting that there could be multiple causes of her ultimate death); and (2) the Divisional Court had drawn an artificial distinction between Jodey’s mental health and her ultimate death, when these were really one and the same, her deteriorating mental state being the reason for her death.
The Appellant asked for (1) a fresh Jamieson inquest to investigate the issue of causation of her daughter’s mental health crisis that she must have suffered just before she took her own life, and (2) a finding that Art 2 obligations were anyway engaged in the circumstances.
The coroner’s position was that to allow the appeal and direct a second inquest would be to extend the existing jurisprudence substantially (in effect exploring ‘why’ and not ‘how’ someone died). It was said this posed practical difficulty for coroners in future, because they might come under pressure to investigate the causes of a person’s psychiatric problems in suicide cases, which in many cases would be a difficult and controversial task. In essence exploring why someone was distressed enough to take their own life was, it was argued, outside the required scope of an inquest.
The Court’s decision
The Court of Appeal agreed that for the Coroner to have investigated the DWP’s conduct further and look at the specifics of individual errors and breaches of policies of the Department lay beyond the scope of any Jamieson inquest. But here there was now the ICE report setting out those failures, which the DWP accepted. The real question was whether the inquest should now consider the causative impact of those failures.
Causation in inquests
The threshold for causation of death at an inquest is that the matter said to have caused the death must have more than minimally, negligibly or trivially contributed to it. That question is to be determined on the balance of probabilities. Combining the threshold for causation and the standard to which it must be established, the question is whether, on the balance of probabilities, the conduct in question more than minimally, negligibly or trivially contributed to death.
Existing authority shows that it is open to a coroner to record the facts which contributed to the circumstances which may or may not in turn have led to death. A coroner can look at factors which contributed to mental health deterioration, including the impact of past events on a person’s mental health in a suicide case.
The Divisional Court were therefore wrong to approach causation on the basis of whether the death would have occurred “but for” the particular act or omission. Causation in inquests is a broader concept, which encompasses acts or omissions which contribute (more than trivially) to death. Hence it is open to a coroner in a suicide case to consider the extent to which acts or omissions contributed to the deceased’s mental health deterioration, which in turn led them to take their own life. The Divisional Court’s error was that they suggested that mental health deterioration could be separated from death and in appearing to dismiss Dr Turner’s evidence as irrelevant because it only went to Ms Whiting’s state of mind and not to her death.
Here the fresh psychiatric report provided expert evidence about the way in which the abrupt cessation of benefits was likely to have affected Jodey’s state of mind. That was ‘an issue well within the scope of a Jamieson inquest’. It not only went to the issue of intention for suicide, but also, that evidence would assist the coroner in the formulation of a narrative conclusion, to reflect the extreme anxiety and distress suffered before Ms Whiting took her own life.
No sharp distinction could be drawn between Ms Whiting’s poor mental health and her death by suicide, the former was the end point of the latter. It would be open to a coroner presiding over a fresh inquest (assuming the expert evidence was accepted) to find as a fact that the sudden withdrawal of benefits contributed to a deterioration in mental health state; and record a brief, neutral, factual narrative conclusion such as: “The deceased took her own life as a result of a deterioration in her mental state exacerbated by the abrupt cessation of her ESA by the DWP“.
A wide coronial discretion
The Court of Appeal recognised the wide discretion conferred on coroners to establish the background facts, consider contributory factors and then determine whether those facts were or were not causative of death. It would be undesirable to restrict a coroner’s discretion to conduct whatever investigations are appropriate within the ambit of a Jamieson inquest to establish ‘how’ the deceased came by their death. But, said the Court, where suicide is raised as a possible conclusion, part of the coroner’s role is to investigate whether the deceased intended to take their own life, and whether the deceased acted while their mind was disturbed, (with that fact being recorded if it is established). An investigation of the cause or causes of disturbance of the mind may therefore be part of, or lie very close to, the matters which are already before the coroner.
Necessary or desirable to have a fresh inquest?
Having established the discretion to consider the impact of events on Ms Whiting’s mental health the Court of Appeal went on to considered whether in this particular case it was ‘necessary and desirable’ to hold a fresh inquest (applying the s.13 ‘Hillsborough test’)
The function of an inquest is to seek out and record as many of the facts concerning the death as the public interest requires and to establish the ‘substantial truth’. In this case the extent to which the DWP’s actions contributed to Jodey’s mental health was a matter of real significance to her family and was part of determining the ‘substantial truth’. If the death was connected with the abrupt cessation of benefits the public had a legitimate interest in knowing that. The judges were unanimous that the interests of justice required the claimant to have the opportunity to invite a coroner, at a fresh inquest, to make a finding of fact that the DWP’s actions contributed to her daughter’s deteriorating mental health. It was not necessary, but it was desirable for this opportunity to be given.
Art 2 was not engaged
The fresh inquest should not however be an Art 2 Middleton inquest. The basic ingredients of an Article 2 operational duty, as outlined in Rabone, were not present. The DWP did not assume responsibility for Ms Whiting, or indeed for any vulnerable person who is in receipt of benefits. The fact that the DWP is the agency responsible for administering the welfare benefits system does not of itself involve any assumption of responsibility to safeguard against the risks of suicide or self-harm by any of the many millions of persons with whom the DWP has dealings.
This decision leaves the discretion as to an inquest’s scope with the coroner, whilst making clear the importance of the touchstone of causation it is still for the coroner when setting their investigation’s scope to decide what ‘by what means’ actually means for each inquest.
The Divisional Court thought the coroner at the first inquest had done enough, and that although a different coroner may have explored much wider matters in a similar case did not mean that every coroner must do so. But there is now a clear steer from the Court of Appeal that when addressing the ‘how’ question a coroner may, and in some cases should, as a matter of discretion, go beyond a bare determination of the mechanism of death. To meet the interests of justice here more detailed exploration of causation was required.
It will be important to bear in mind that whilst causation in the context of an inquest means making a material (more than trivial) contribution. There will of course need to be some evidence of that contribution existing on the balance of probabilities. All that was available to the coroner at the first inquest was the subjective opinion of family members about why Ms Whiting took her own life. This was, said the Court of Appeal
“a forensic world away from evidence of an expert psychiatrist who can speak with objectivity, drawing on long clinical experience, about the likely impact on the deceased’s established mental illness of actions by the DWP”.
Speculation about causation by a family is not evidence.
But should it then be left to a family to seek out and pay for that expert evidence? It is the coroner’s duty to conduct the investigation and a coroner lacking evidence of material contribution should perhaps consider whether that evidence, if it could reasonably be obtained, could reasonably provide the basis for causative findings. Of course the decision whether or not to seek out that contribution evidence will be largely where any discretion lies.
Where someone has killed themselves and it is said their state of mind was contributed to by their partner’s infidelity the interests of justice are not likely to require the affairs of individuals to be investigated in public at an inquest. But where the shortcomings of a public body are said to have contributed to a deterioration in mental health it is harder to see why a coroner would exercise their discretion so as to ignore this factor.
As the Court of Appeal now see it, the bereaved family and the public have a legitimate interest in knowing how public bodies’ actions impact on citizen’s mental health, even where Article 2 obligations are not owed.
 Lewis Carroll, Through the Looking Glass, and what Alice found there. Macmillan (1872)
 or Mistress or Mx depending on your preferred noun & pronoun choice
 See R (Tainton) v HM Senior Coroner for Preston and West Lancashire  EWHC 1396 (Admin), at §41, R (Wandsworth BC) v HM Coroner for Inner West London  EWHC 801 (Admin),  Inquest LR 103 at §32.
 The Hillsborough case above