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Article 2 Inquests—possibility of an extension of the operational duty

  • Legal Development 10 December 2019 10 December 2019
  • UK & Europe

  • Healthcare

Article 2 Inquests—possibility of an extension of the operational duty

R (on the application of Lee) v HM Assistant Coroner for the City of Sunderland [2019] EWHC 3227 (Admin)

What are the practical implications of this case?

The case of Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2, [2012] 2 All ER 381, [2012] All ER (D) 59 (Feb), is well established authority that Article 2 of the European Convention of Human Rights (ECHR) can be engaged in the context of the death of a patient who is admitted to hospital voluntarily for mental health problems, rather than being detained under the Mental Health Act 1983.

The operational duty is the positive duty imposed by ECHR, Art 2 on the state to take reasonable steps to protect the life of a specific individual where state authorities know (or ought to know) that there is a real and immediate risk to that person's life, either by suicide or violence at the hands of another.

In the case of Rabone it was held that three elements would need to be present in order for the operational duty to exist. These were:

  • a ‘real and immediate risk’ of suicide
  • acute ‘vulnerability’ of the individual
  • an ‘assumption of responsibility’ or degree of ‘control’ by the state towards that individual

In Lee v HM Assistant Coroner for the City of Sunderland the court found that the coroner had not given proper consideration to all of these elements, instead focusing on the issue of ‘control’ and remitted the decision back to the coroner to make again.

The judge noted that, in the event that the coroner does find an operational duty exists in these circumstances (and thus that ECHR, Art 2 applies), this would be an important extension of the law beyond Rabone to include patients that have not even been admitted to hospital, but remain under the care of mental health services in the community. This would clearly have important implications for any practitioners in this area of law and would make it that much more difficult to resist the application of ECHR, Art 2 in cases where an individual known to mental health services has taken their own life in the community.

The judge also considered whether there had been any error on the part of the coroner in the application of the law with regards to the systemic duty conferred by ECHR, Art 2 (ie the duty to provide an effective regulatory framework for the protection of people's lives generally). The law with regards to this is still developing, but the judge found that the coroner had applied this correctly and there was no arguable case for him to consider in relation to this.

What was the background?

Mrs Lee brought this judicial review claim against the coroner as a result of the decision that ECHR, Art 2 was not engaged for the purposes of the inquest proceedings relating to the death of her daughter, Melissa Lee.

Melissa had a long history of mental health issues and a diagnosis of Emotionally Unstable Personality Disorder. At the time of her death, she was being treated in the community however she had previously had admissions to hospital (on both voluntary and involuntary bases). In the month prior to her death, she had attended hospital on a number of occasions having taken overdoses. On each occasion, it was decided that she did not meet the threshold for admission and she was instead treated at home, in the community. She was assessed at being at moderate risk of self-harm such that she had a care plan in place and was under the care of a care coordinator and consultant psychiatrist.

The day before she died Melissa was seen at A&E having taken another overdose. She was however discharged at her request and was found unresponsive at her home the following morning. A post-mortem examination revealed drug levels which had caused her death.

As part of pre-inquest review arguments, the coroner was invited to consider whether ECHR, Art 2 was engaged and received lengthy submissions from the interested persons in this respect. By way of a decision on 22 February 2017 the coroner concluded that ECHR, Art 2 was not engaged on either operational or systemic grounds. It was this decision that Mrs Lee sought to challenge by way of judicial review.

Mrs Lee made the application on numerous grounds in respect of the coroner's failure to find that either an operational or systemic duty arose in the circumstances.

What did the court decide?

The court was satisfied that the coroner had not erred in her application of the law in relation to systemic duty and found no arguable case in relation to these grounds.

However, in relation to the existence or not of an operational duty, the court found that the coroner had not given proper consideration of the issues of ‘real and immediate risk’ and ‘vulnerability’. In the circumstances, the court decided that it was not appropriate to quash the coroner's decision but ordered that the decision should be remitted back to the coroner for further consideration.

In taking this step, it was recognised that the coroner is the most appropriate person to make such a decision, as the primary fact finder in these cases.

What are your predictions for how this area of law will develop?

This is a clear indication that the ‘real and immediate risk’ test can and should be applied in the community to NHS patients. The coroner will now have to make findings on the extent of the risk and the nature of Melissa's vulnerability, and it will be interesting to see how the test is interpreted. There is currently some, but not much, case law, on how immediate the risk has to be—I think we can expect to see this area being tested next.

In any event, whether this is the case that achieves it, it seems we may not be far away from an extension of the law such that ECHR, Art 2 found to be engaged in cases where an individual not subject to hospital admission and known to mental health services has died.


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