When, and how far, does the Human Rights Act apply to an inquest into the death of a detained patient?

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1 When, and how far, does the Human Rights Act apply to an inquest into the death of a detained patient? The Court of Appeal has spoken again on the extent of the obligations on the coroner to investigate deaths of those detained under the Mental Health Act R (Allen) v HM Coroner for Inner North London (and others) 2009, highlights the principles to apply. Background We know that Article 2 (the right to life) places a duty on healthcare providers to do all that can be reasonably expected of them to prevent loss of life for those in their care. This is particularly so with those detained under the Mental Health Act If there is an apparent or possible failing then the law requires that there should be some form of effective official investigation. One form of investigation, with which we are all familiar, is the coroner s inquest. There are other possible forms of investigation which might satisfy this requirement either by themselves or in combination. These include criminal investigations, civil claims, internal inquiries and complaints. Usually at an inquest, the coroner investigates how somebody met their death, but it is now well established where Article 2 is engaged that the coroner is required to undertake a broader inquiry not only into how someone met their death but also to consider the circumstances surrounding their death. The coroner is obliged to hold an inquest with a jury where there is a death in custody. It s thought that a jury inquest is generally more comprehensive although that is probably based on anecdotal evidence rather than empirical data. This case considered a number of issues, but of particular relevance are: The application of the coroner s discretion to call (or not) a jury. When should Article 2 be engaged prompting a broader inquiry? How far should the inquiry at an inquest go into matters which may or may not be relevant to the cause of death? 1 July 2009

2 The facts Mrs Allen was detained as a mental health patient under section 3. She was found collapsed in the bathroom and could not be resuscitated. Nurses on the ward undertook basic life support and within a couple of minutes an SHO attended who gave advanced life support and cardiopulmonary resuscitation. An ambulance arrived and the crew took over treatment and transferred the patient to the local acute hospital where Mrs Allen was pronounced dead. The post mortem report concluded that the cause of death was coronary heart disease leading to cardiac arrest. The coroner sat alone and heard the case and determined that Mrs Allen died from natural causes when she suffered an abnormal fatal heart rhythm. The expert evidence concluded that by the time the SHO arrived, Mrs Allen was already asystolic (no heartbeat) and almost certainly beyond recovery. The deceased s husband was not happy and sought to review the decision and process of the inquiry conducted by the coroner. At various hearings he took issue with the fact there was no jury; he argued that the Human Rights Act was not properly engaged by the coroner and finally he felt there were factual issues not properly investigated by the coroner. The matter made its way up to the Court of Appeal who gave judgment in June The issues There were a number of issues, some of which need not detain us long. There were significant arguments as to the events and facts which the inquiry revealed and whether the coroner s inquiry had been thorough enough to consider all the relevant issues which could have caused the death. The husband was concerned whether the initial reaction of the staff was appropriate or sufficient. He argued that the coroner had not taken sufficient evidence on whether staff were adequately trained and whether they had dealt with the fact that the deceased had been eating just before her cardiac arrest and her airways were blocked with food. There was also an issue with the ambulance because it had been delayed when it tried to gain admission onto the hospital grounds. Finally, because Mrs Allen was frail, the husband argued that his wife should have been transferred from a normal psychiatric ward to a ward which dealt with the elderly. In fact the Court of Appeal decided that the coroner had undertaken sufficient inquiry on these issues and as a result the husband lost his appeal. However a number of important questions arise in this case. 1. Should the coroner always call a jury when a detained patient dies? It is often assumed that the coroner will summon a jury when dealing with a patient who dies while detained in hospital but this does depend on the circumstances and it is not a foregone conclusion. The coroner here determined that he could sit without a jury and that decision was upheld on review. 2 July 2009

3 The decision whether to summon a jury is a matter solely for the coroner if it appears to the coroner that a jury is required. It is a matter of discretion. Coroners need to refer to section 8 Coroner s Act If they decide the death occurred in circumstances the continuance or possible recurrence of which is prejudicial to the health and safety of the public or any section of the public, then they should exercise discretion to call a jury. Coroners are often cautious and there is often enough doubt (eg, in a suicide case) as to the actions of the NHS to warrant a jury inquiry. However if, having considered all the circumstances of the case and subsequent events, the coroner is satisfied that there is no such risk to the health and safety of the public, there would be no reason for him to summon a jury. He does however retain a discretion and coroners often exercise it. 2. When is Article 2 engaged? The case emphasises what is probably the law as currently practised. There was suggestion in the review process that Article 2 is only engaged (and hence an investigation with a wider scope) when there is evidence of fundamental failure(s) which led to the death. This suggestion was rejected by the Court of Appeal. It emphasised current legal thinking that the vulnerability of detained persons, including mental health patients, is the reason why the obligation to protect their right to life under Article 2 is owed to them by the detaining authority. In this case, Mrs Allen was detained by the state as a formal patient under the Mental Health Act. It was at least possible that the healthcare providers failed in their obligation to take measures to save her from dying. That, in itself, was enough to trigger the wider inquiry by the coroner under Article 2. Otherwise, as the court put it, one might never know. It is worth remembering though, that this applies to patients detained by the NHS. For other patients, the requirement to hold an Article 2 inquest is less stringent. Coroners are much less likely to say Article 2 is engaged and we are much more likely to be able to rely on the other types of investigation listed above to discharge any obligation that does exist. 3. The question of causation! In to how much detail does the coroner have to go with his inquiry? Despite discussion as to when Article 2 is engaged, it was determined in this case that the coroner did hold a full Article 2 compliant investigation. The husband argued that the coroner did not hear enough evidence to consider the issues outlined above. He particularly argued that the inquiry was deficient in that the coroner did not properly consider the issue that those who found the patient had found her with a blocked airway. In addition he argued that the coroner failed to properly investigate whether Mrs Allen should have been transferred to another ward dealing with elderly care; the training provided to the junior staff and the treatment that they gave. He also argued the coroner should have dealt with the issue relating 3 July 2009

4 to the delayed ambulance. There were many questions surrounding her care leading up to and immediately after the cardiac arrest. The Court of Appeal decided that there was a limit as to how far the coroner had to go with the inquiry. It is a matter of discretion which he needs to exercise in each case in order to elicit a conclusion on the central issue or issues. Causation is relevant here. It is clear that in a coroner s investigation, what is being investigated is that which caused or may have caused or contributed to the death. If there is no causal link between an event or fact and the death then the link between the investigation and Article 2 is broken and the coroner does not have to inquire. It therefore makes sense in this case that, as the evidence and expert guidance showed that the death was caused by coronary artery disease and that nothing could have been done to save her, then the coroner was entitled to exercise his discretion not to investigate those other issues which were not central to the cause of death. In fact in this case, some of those other issues were the subject of internal inquiry and reports. Conclusion The main learning points for the NHS when a patient is formally detained under the Mental Health Act 1983 and dies in our care are: 1. an inquest with a jury is likely but not a foregone conclusion. Before an inquest it s worth thinking whether representations should be made to the coroner; and 2. Article 2 of the Human Rights Act will probably be engaged but the coroner can limit the extent of his inquiry and exclude matters not causative of the patient s death. Again, we should consider carefully whether representations should be made to the coroner before the hearing starts to determine the extent of the inquiry to be made and to ensure proper preparations are made. Contacts Stuart Knowles Consultant stuart.knowles@mills-reeve.com Jill Weston Associate jill.weston@mills-reeve.com Lucy Johnston Senior lucy.johnston@mills-reeve.com Katrina McCrory Senior katrina.mccrory@mills-reeve.com 4 July 2009

5 Ruth Creed Charlotte Mawdesley Lorna Shastri-Hurst The contents of this document are copyright Mills & Reeve LLP. All rights reserved. This document contains general advice and comments only and therefore specific legal advice should be taken before reliance is placed upon it in any particular circumstances. Where hyperlinks are provided to third party websites, Mills & Reeve LLP is not responsible for the content of such sites. Mills & Reeve LLP is a limited liability partnership regulated by the s Regulation Authority and registered in England and Wales with registered number OC Its registered office is at Fountain House, 130 Fenchurch Street, London, EC3M 5DJ, which is the London office of Mills & Reeve LLP. A list of members may be inspected at any of the LLP's offices. The term "partner" is used to refer to a member of Mills & Reeve LLP. 5 July 2009