Case comment: Dove v HM Assistant Coroner for Teeside & Hartlepool & Others [2021] EWHC 2511 (Admin)
Park Square BarristersThis article seeks to comment on the recent High Court decision in Dove v HM Assistant Coroner for Teeside & Hartlepool & Others [2021] EWHC 2511 (Admin). Although the Court considered multiple grounds of appeal this comment will focus on the Court’s ruling in relation to Article 2 and, in particular, as to the applicability of the positive operational duty.
The factual background:
The deceased died from an overdose of prescription medication in 2017 whilst in the community. It was the family’s contention that the deceased had been suffering from severe stress prior to her death and that a recent decision by the DWP to stop paying her ESA contributed to this.
HMAC held a Jamieson style inquest (i.e. HMAC held that the enhanced investigative duty under Article 2 (the right to life) was not engaged in the deceased’s case) and concluded that the deceased died from suicide.
The family of the deceased sought, by appeal, for the Coroner to hold a fresh investigation under section 13 Coroners Act 1988.
The appellant’s position on Article 2:
The appellant’s position was that the original inquest had been insufficient for the purposes of Article 2– i.e. that HMAC was under a duty to hold an enhanced investigation (more commonly known as a Middleton style inquest) due to an arguable breach of a substantive duty under Article 2.
It was submitted that there was an arguable breach in relation to certain substantive duties under Article 2: the positive operational duty; and the systems duty. It was not the appellant’s contention that this was a case where the circumstances were such that Article 2 was automatically engaged.
The Court’s review as to the reach of the positive operational duty:
The Court noted the leading case of Rabone v Pennine Care NHS Trust [2012] UKSC 2 and the dicta of Lord Dyson from that case where he set out three factors which were of guidance in determining whether the operational duty exists in any given circumstances:
- the assumption of responsibility by the state for the individual’s welfare and safety (including by the exercise of control);
- the vulnerability of the victim (for example, children to whom local authorities owe duties); and
- the nature of the risk – common risks present in everyday activities or professional obligations would not give rise to an operational duty.
The Court emphasised the key factor was the assumption of responsibility by the state. For example, the Court noted the case of R (Maguire) v Blackpool and Fylde Senior Coroner [2020] EWCA Civ 738, where it was held that the positive operational duty did not arise due to failures by individual personnel involved with the care of a vulnerable resident of a care home.
In the context of this case the Court observed at [56] that there was a duty to respect the rights of others and that ‘any consideration of article 2 obligations in the context of social security must recognise the core demand on the Department to operate a system that takes account of the statutory rights of the very many people whose physical or mental health may raise a pressing need for benefits such as ESA.’
The Court’s ruling on Article 2:
The Court dismissed this ground of appeal. The Court held that there was no assumption of responsibility. It was not supported by case law and the decision of the DWP to allocate funds, or not to do so, was based only on the eligibility criteria: it ‘had nothing to do with article 2’. The safeguarding mentioned within the DWP’s guidance for visiting applicants who had not attended a mandatory interview was merely ‘practical’ guidance to decision-makers and was not sufficient to demonstrate the assumption of state responsibility for an individual’s welfare.
The Court further held that the deceased’s vulnerability, as someone who suffered with significant physical and mental health problems, was insufficient in this case to engage the operational duty: ‘the unifying feature of the application of the operational duty is state responsibility… [and] there is no general obligation to prevent suicide in the absence of the assumption of responsibility.’
As to the third factor, the Court considered that the nature of the risk in the deceased’s case was not exceptional: the risk to her from the withdrawal of ESA ‘did not arise from an inherently dangerous situation of specific threat to life such as risks posed by hazards which a person would not ordinarily assume.’
The Court further rejected any submission that there had been an arguable breach of the systems duty. It was observed that there was a ‘comprehensive framework’ for decision-making as to ESA and that the reports on previous cases were only evidence as to ‘individual failings’ as to opposed to any ‘systematic or structural’ issue.
In line with the Court’s ruling that there was no arguable breach of any substantive duty under Article 2, the Court could not find that the enhanced investigative duty arose.
Comment:
The case provides a significant example of the Court’s consideration regarding the application of Article 2 in a ‘non-traditional’ setting. It is pertinent that the appellant’s submissions sought to rely on other inquests where it had been deemed that Article 2 was engaged in an apparently analogous situation. The most important feature, therefore, of the Court’s decision is the emphasis placed on the first factor – the presence of an assumption of responsibility by the state – for the application of the positive operational duty.
Whilst the Court in Rabone (at [23]) noted that the ECtHR has found a breach of the operational duty in a case where there had been no assumption of responsibility by the state, it appears that the scope for such a finding is very limited.
It is perhaps also significant that this case follows the High Court decision in R (Morahan) v HM Assistant Coroner for West London [2021] EWHC 1603. In that case the Court refused to extend the scope of the application of cases in which the enhanced investigative duty automatically arises (i.e. where the circumstances are such that the enhanced duty will necessarily arise in every case). When taken together both cases tend to show a reluctance by the Courts to expand the scope of Article 2 from those cases which are already well recognised in law.
Nathan has a developing inquest practice and has experience in both jury and article 2 inquests.