Article by Helena Spector: High Court rules on operation of the “general” duty in an Article 2 inquest
Park Square BarristersIn R (Patton) v HM Assistant Coroner for Carmarthenshire and Pembrokeshire [2022] EWHC 1377 (Admin), Mrs Justice Hill quashed a ruling that the Article 2 general (or systemic) duty was not engaged by the death of Kianna Patton. The issue has been remitted to the coroner for redetermination.
Kiana was 16 when she took her own life. She had been under the care of Specialist Child and Adolescent Mental Health Services (S-CAMHS). She had a history of panic attacks and had previously attempted to end her life. At the time of her death, she had been living with a friend and had been permitted to spoke cannabis whilst a that home. Kiana’s mother, Ms Patton, was seriously concerned about this, given Kiana’s previous mental health issues. Ms Patton reported her concerns to the police and to the Local Authority but no concerted action was taken before Kiana disappeared and was later found dead.
Ms Patton argued that there were numerous failings in the way in which the Local Authority and S-CAMHS provided care for Kiana and responded to Mrs Patton’s concerns. It was argued that the Local Authority failed to make Kiana a looked after child at the relevant opportunity, the Local Authority failed to implement a care and support plan for her and her mental health needs and that S-CAMHS had failed to risk assess and treat Kiana before her death.
Specific arguments were raised with regard to Article 2 and ‘looked after children’. Ms Patton relied on the duty under s.76(1)c) of the Social Services and Well-being (Wales) Act 2014 to provide accommodation where the person who had been caring for the child was prevented from providing suitable accommodation or care and the duty under s.76(3) to provide accommodation for any child within its area who has reached the age of 16 and whose well-being the authority considers is likely to be seriously prejudiced if it does not provide the child with accommodation. Mrs Patton’s core submission was that:
It is arguable that there was a failure to take the steps the Council ought to have taken, which would have meant that it exercised a significant degree of control over a most vulnerable child, who had proven to be a suicide risk. That relationship is sufficient to engage the general duty under [Article 2] and indicates state responsibility in Kianna’s death.
The Local Authority disputed that they had or should have had care for Kiana. Mrs Patton had requested that Kiana leave the family home; Kiana was 16 and had autonomy and independence in her choice of accommodation; the Local Authority was entitled to not consider that Kiana’s well-being was likely to be seriously prejudiced if the Local Authority did not provide her with alternative accommodation.
The central issue for the judicial review proceedings was therefore whether and how the state’s duty to preserve life under Article 2 could be engaged in this context.
The Issues
(1) The operational duty or the general/systemic duty?
The first question to be answered was whether the ‘systemic’ or ‘operational’ duty applied on these facts.
Mrs Justice Hill relied upon the principles set out in R (Morahan) v West London Assistant Coroner [2021] EWHC 1603; [2021] QB 1205 at [29]-[31] and [38]-[121]:
(1) There is a duty on the state to investigate every death. This is part of its framework duty under article 2 by way of positive substantive obligation. This duty may be fulfilled simply by identifying the cause of death. It may require further investigation and some explanation from state entities, such as information and/or records from a GP or a hospital.
(2) In certain circumstances there is also a distinct and additional enhanced duty of investigation which requires the scope of the investigation to have the minimum features summarised by Lord Phillips in [R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29; [2011] 1 AC 1] at paragraph 64. In this country the enhanced investigative duty is usually, but not always, to be fulfilled by a Middleton inquest.
(3) The enhanced investigative duty is procedural and parasitic on a substantive duty. It cannot exist where there is no substantive duty.
(4) The circumstances in which an enhanced investigative duty, as a procedural parasitic duty, arises are twofold:
- whenever there is an arguable breach of the state’s substantive article 2 duties, whether the negative, systemic or positive operational duties; and
(b) in certain categories of circumstances, automatically”.
Mrs Justice Hill ruled that the general duty was owed by the Local Authority to Kiana, a general duty “to put in place a legislative and administrative framework to protect the right to life involving effective deterrence against threats to life, including criminal law provisions to deter the commission of offences, backed up by a law enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions”.
(2) What engages the general duty: is it de facto engaged or is it engaged by particular steps taken by state actors and/or particular vulnerabilities of a specific victim?
Mrs Justice Hill held that the general duty, unlike the operational duty, does not require that the limb of the state has assumed responsibility or exercised control over an individual, nor that that individual be particularly vulnerable. The duty was engaged insofar as the state, through a range of entities, had failed to put in place an adequate administrative framework for the protection of life.
Mrs Justice Hill referred to the phrasing of the duty in the healthcare context, described in Morahan at [30(2)(a]) as simply requiring “effective administrative and regulatory systems”. She pointed out that in those cases no reference was made to assumptions of responsibility or particular vulnerability.
(3) Is the existence of the duty a discrete and prior consideration to a consideration of whether the duty was breached?
Mrs Justice Hill answered this question in the affirmative. She ruled that the Coroner should have proceeded on the basis that the general duty was applicable to the relationship between Kianna and the Local Authority and S-CAMHS absent the need for Mrs Patton to show any breach of that duty.
[109] Once those matters had been resolved, or perhaps conceded, the focus should have been on whether there were any arguable breaches of the general duty, applying the low arguability threshold, and bearing in mind the key distinction between systemic and individual failings.
Mrs Justice Hill held at [115-119] that the Coroner’s approach to whether there had been a failure to provide alternative accommodation to Kiana had been flawed as he had failed to conduct his own assessment as to whether Kianna should be considered to be a ‘looked after’ child. Further, his decision that the general duty was not engaged was flawed as a breach of the duty to provide accommodation was not an essential element of the existence of the general duty.
(4) Can a Coroner rely on a Local Authority’s subjective assessment of whether a child was or should have been a looked after trial in arguing against the engagement of Article 2?
Mrs Justice Hill, citing Salford City Council, was clear that he views of one of the parties as to whether a child is in fact looked after are not determinative, and the court must conduct its own assessment of whether a child should have been considered as such.
Conclusion
This case usefully delineates the boundaries and operation of the general duty imposed on the state from the operational duty. It can also be seen as a clear statement of principle that the factual question of breach should not predetermine or foreclose considerations about the existence and nature of the state’s general duty, and nor should those considerations be conflated with questions about particular victims’ vulnerabilities. Generally speaking, it is a decision that confirms that the bar for engagement of the state’s general duty is low. Further, the case makes it clear that alleged failings by the state can nonetheless be explored in an inquest even if they are not of a nature that can be characterised as arguable breaches of the general duty.
Helena Spector joined PSQB in October 2021 and has a busy practice with particular interest in Regulatory Crime and Inquest and Inquiries.
In order to instruct Helena or to discuss any aspect of her practice please contact her clerks.
Madeleine Gray on 0113 202 8603