Kate Wilson discusses Article 2 and Inquests into the deaths of mental health patients in the communityKate Wilson
This recent application for Judicial Review, heard by the Administrative Court in Leeds, has attempted to extend the law and the remit of the operational duty under Article 2 of the ECHR to those patients receiving care for mental health conditions in the community.
The Claimant is the mother of Melissa Lee who died on 18 March 2016. Melissa suffered from significant mental health problems and had received treatment on both a voluntary and compulsory basis under the Mental Health Act 1983 at various points in her life. She had been diagnosed as suffering from an emotionally unstable personality disorder and a care plan was put in place in the community. From March 2015 this included a crisis management plan. In the six months prior to her death, Melissa had taken a number of overdoses and suffered physical harm, resulting in treatment in A&E. In March 2016, Melissa had been assessed by the crisis team and considered only a moderate risk of self-harm which did not justify readmission to the hospital. She was under the care of a care coordinator and consultant psychiatrist. When she had presented for treatment in A&E, she requested and was allowed to discharge herself including the day prior to her death. A post-mortem examination revealed drug levels which had caused her death.
As part of the pre-inquest review, the Coroner was invited to consider whether Article 2 was engaged. The Claimant sought to persuade the Assistant Coroner that there were arguable breaches of the systemic and operational duties owed to Melissa and therefore an Article 2 inquest was required. On 22 February 2017 the Coroner concluded that Article 2 was not engaged, either on operational or systemic grounds. The Claimant challenged this decision by way of judicial review. This was heard by HHJ Raeside QC, who provided an ex tempore judgment on 12 December 2019.
Article 2 and Psychiatric Patients
Article 2 of the European Convention on Human Rights is an absolute right which provides that “everyone’s right to life shall be protected by law. No one shall be deprived of his right intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law”.
Article 2 imposes on member states substantive obligations not to take life without justification, a duty of enhanced investigation, a duty to establish an effective regulatory framework for the protection of life (systemic duty), and an operational duty. This is a duty to take reasonable steps to protect the life of an individual where the state knows or ought to know that there is a real and immediate risk to that person’s life (either by suicide or at the hands of another).
When Article 2 is engaged, the question of “how” the deceased came by his or her death is interpreted more broadly as “by what means and in what circumstances” (section 5(2) Coroners and Justice Act 2009). It can also have significant consequences on whether a family is able to access legal aid funding for legal representation at the inquest.
The extent of the operational duty has evolved over many years and its boundaries continue to be explored by the courts. In the context of suicide in particular, jurisprudence has developed significantly over the years and included repeated consideration by both the House of Lords, Supreme Court and the European Court of Human Rights Osman v UK, Powell v UK, and Savage v South Essex Partnership NHS Foundation Trust  UKHL 74.
In the case of Rabone and another v Pennine Care NHS Foundation Trust  UKSC 2, the Supreme Court ruled that there was an operational duty owed under Article 2 to informal psychiatric in-patients (those who were receiving care in hospital but not detailed under the Mental Health Act 1983). In that case, Ms Rabone died when on leave outside of hospital, however the Supreme Court held that the operational duties extended to those circumstances taking into account her extreme vulnerability and the exceptional nature of the risks, together with the degree of responsibility assumed by the NHS Trust for her care and welfare.
In the context of psychiatric patients, Lord Dyson in Rabone held that the following was required in order for the operational duty to exist and Article 2 to be engaged:
- A real and immediate risk of suicide;
- Acute vulnerability of the individual; and
- An assumption of responsibility by the state towards that individual.
The degree of control required by the state for the operational duty to be engaged is high. However, in circumstances where the individual is sufficiently vulnerable, the European Court of Human Rights has been prepared to find a breach of the operational duty even where there has been no assumption of control by the state. In Rabone even though Miss Rabone was receiving treatment as a voluntary patient in the hospital, the Court found that the state had assumed responsibility for her.
In the present case, Melissa had not been assessed as requiring in-patient care and instead was receiving care and support under a care plan in the community. The Claimant therefore invited the court to extend the law beyond Rabone.
The Judicial Review Application
The majority of the nine grounds upon which the judicial review application was made were refused at the permission stage. The substantive complaints related to the alleged irrationality of the decision regarding the engagement of the systemic and operational duties.
The Administrative Court was satisfied that the Coroner had not erred in determining that the systemic duty did not arise. The Coroner had considered and applied the case of Powell v United Kingdom and found that there was no evidence at the pre-inquest review which would suggest that the system for securing high professional standards among healthcare professionals and the protection of patient’s lives was inadequate. In particular, the Assistant Coroner properly directed herself that errors of judgment or an individual’s clinical negligence would not be sufficient to amount to an arguable breach of the systemic duty under Article 2. The limited remit of the engagement of the systemic duty in medical cases has been clarified since the cases of Fernandez v Portugal in the European Court of Human Rights and R (Parkinson) v HM Senior Coroner for Kent  EWHC 1501 (Admin) (discussed by Lorraine Harris in an article here
The judicial review of the operational duty issue was, however, partially successful.
The Coroner had determined that the operational duty under Article 2 was not engaged because there had been no assumption of responsibility or control by the state over Melissa. HHJ Raeside QC found that although the Coroner had accepted that a threefold test was applicable, she addressed the question of “assumption of responsibility” alone and had not expressly considered the issue of risk or vulnerability and had not considered those issues cumulatively.
Recognising that the Assistant Coroner is the most appropriate person to determine that issue at first instance, and that each case will turn on its own unique facts, the Administrative Court did not quash the decision (as the Claimant had sought) but remitted this issue back to the Assistant Coroner to determine the full three-stage test under Rabone. The Administrative Court considered that it would be wrong to quash the decision without the Assistant Coroner’s analysis of the relevant facts in this particular case.
This case demonstrates the complex issues regarding the engagement of Article 2 to be determined in some cases at pre-inquest review hearings, when the evidence had not yet been heard or tested and the factual circumstances of the death are yet to be determined. Such questions are highly fact sensitive and the law in this area continues to evolve.
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