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

Similar documents
You cannot pick and choose

Changes to Rule 43 of the Coroners' Rules Coroner's reports to prevent future deaths - Explanatory Notes

Coroners Act. Purpose: Where the Act Applies: How the Act Works

Inquest Touching the Death of Alexander PEREPILICHNYY. Rulings Following the Pre-Inquest Review Held on the 2 nd June 2016

GUIDANCE No 16A. DEPRIVATION OF LIBERTY SAFEGUARDS (DoLS) 3 rd April 2017 onwards. Introduction

BR 4 / 2000 CORONERS ACT : 25 CORONERS RULES 2000

GUIDANCE No. 29 DOCUMENTARY INQUESTS (ALSO KNOWN AS SHORT FORM OR RULE 23 INQUESTS)

GUIDANCE No. 26 ORGAN DONATION

Office of the Inspector of Prisons 24 Cecil Walk Kenyon Street Nenagh Co. Tipperary

Adrian Keeling QC Misconduct & Compliance

What is required to satisfy the investigative obligation under Article 2 and/or 3 ECHR? JENNI RICHARDS

CERTIFYING AND INVESTIGATING DEATHS IN ENGLAND, WALES AND NORTHERN IRELAND THOMPSONS RESPONSE TO THE REVIEW OF CORONERS

GUIDANCE No.5 REPORTS TO PREVENT FUTURE DEATHS 1

Permanent residence University of Reading

Guidance for staff when preparing statements (court/police) and attending inquests and court hearings

MEDICAL YOUR HOTEL, RESTAURANT OR EMERGENCIES AT BUSINESS AN ANALYSIS OF DUTY, RISK AND LIABILITY

THE CORONER WHAT IS EXPECTED OF YOU. Karin Welsh Her Majesty s Assistant Coroner for the City of Sunderland

A Coroner s perspective on a conclusion of suicide. Michael Singleton HM Senior Coroner Blackburn, Hyndburn & Ribble Valley

Agreement. Independent Police Complaints Commission. Health and Safety Executive. liaison during investigations

Does a hospital owe a duty of care when discharging a mentally ill patient?

Before: LORD JUSTICE McCOMBE And HHJ PETER THORNTON QC, CHIEF CORONER. Between:

CHIEF CORONER S GUIDANCE No. 16. DEPRIVATION OF LIBERTY SAFEGUARDS (DoLS)

GUIDANCE No.24 TRANSFERS

The first prosecution of an NHS trust for corporate manslaughter

LEGAL BRIEFING DEPRIVATION OF LIBERTY. June 2015

What is the current status of negotiations between the UK and the EU on the rights of EU nationals residing in the UK?

Mental Health Bill [HL]

Mental health policy regarding members of the public I require please. I have today decided to disclose the located information to you in full.

An Bille Cróinéirí (Leasú), 2018 Coroners (Amendment) Bill Meabhrán Mínitheach agus Airgeadais Explanatory and Financial Memorandum

Mental Health and Place of Safety

Introduction 3. The Meaning of Mental Illness 3. The Mental Health Act 4. Mental Illness and the Criminal Law 6. The Mental Health Court 7

Implementation of the Mental Health Act 2007

Authorised Version No Coroners Act No. 77 of 2008 Authorised Version incorporating amendments as at 1 August 2013 TABLE OF PROVISIONS

The Mental Diseases Act

Detention Population Data Mapping Project

Coroner s Inquests A Guide for Learners. Directorate of Education and Quality. Health Education England s Deans

Introduction. Deciding to report abuse. Reporting to police

Coroners and Problems Around Disclosure of Documents

Who this guidance is for and when it should be used

THE LIABILITY OF HEALTH AUTHORITIES UNDER THE HUMAN RIGHTS ACT 1998 IN RELATION TO ARTICLE 2 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS.

Adult Support and Protection (Scotland) Act Code of Practice

Domestic Violence, Crime and Victims Bill [HL]

National Statistician s Review of IPCC statistics on deaths during or following police contact

OJC4. I want to complain about a Coroner. OJC_coroner.indd 1 02/04/ :29:54

NOTIFICATION THAT INQUIRY WILL NOT BE RESUMED. Sections 70(1)(a) and 70(2), Coroners Act 2006

Jury service at an inquest. A guide for jurors

detention and duty of care

The Coroners Regulations, 2000

Chalmers, J. (2017) Clarifying the law on assisted suicide? Ross v Lord Advocate. Edinburgh Law Review, 21(1), pp (doi: /elr.2017.

Staff Attending Inquests/Court and Assisting with Police Investigations Guideline

Mental Capacity Act Prompt Cards

MENTAL HEALTH ACT. Act No. 45,1958.

James Weston practice focuses mainly upon clinical negligence, personal injury, historic abuse, inquests and police/regulatory matters.

MENTAL HEALTH AMENDMENT ACT 1998 BERMUDA 1998 : 32 MENTAL HEALTH AMENDMENT ACT 1998

Making Sense of Bournewood Robert Robinson 1 and Lucy Scott-Moncrieff 2

DOWNLOAD COVERSHEET:

Civil Commitment. Understanding the Commitment Process in Brown County. 300 S. Adams, Green Bay, WI (920)

INQUESTS AND POST-MORTEM EXAMINATIONS (JERSEY) LAW 1995

APPG on Refugees and APPG on Migrants: Inquiry into the use of Immigration Detention

Will a death in custody always be subject to independent investigation?

WRONGFUL DEATH CASES

GUIDANCE No.25 CORONERS AND THE MEDIA

Working at Height Seminar. The Kube, Leicester Racecourse 4 October 2018

LEGAL GUIDE TO DO NOT RESUSCITATE (DNR) ORDERS. Prepared by Mental Health Legal Advisors Committee April 2013

Health service complaints

Click here for Explanatory Memorandum

An Bille Cróinéirí (Leasú), 2018 Coroners (Amendment) Bill 2018

Counter-Terrorism Bill

Guidance for Children s Social care Staff around the use of Police Protection

Declarations guidance for student registrants

It s important to note that many of the points I raise here will also be true for detainees held in prisons under immigration powers.

Access to Health Records Policy

HEARING HEARD IN PUBLIC

Business Crime & Financial Services

Decision making for adults lacking capacity

The position you have applied for is exempt from the Rehabilitation of Offenders Act 1974 (as amended in England and Wales).

Replaces: 2/22/2012 Formulated: 2/92 Reviewed: 10/17. Page 1 of 8 PATIENT SELF-DETERMINATION ACT, NATURAL DEATH ACT, ADVANCE DIRECTIVES ACT

Freedom of Information Act 2000 (Section 50) Decision Notice

Guide to Guardianship

Deprivation of Liberty: the Bournewood proposals, the Mental Capacity Act 2005 and the decision in JE v DE and Surrey County Council

PRELIMINARY DRAFT HEADS OF BILL ON PART 13 OF THE ASSISTED DECISION-MAKING (CAPACITY) ACT 2015 AND CONSULTATION PAPER

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

Mental Capacity (Amendment) Bill [HL]

Courts and Evidence Policy. Document Author: Legal Services Manager

Coroners Act, 1871 Act 4 of 1871; 27 th January 1871

Guide to Jury Summons

ADULTS WITH INCAPACITY ACT: WHEN TO INVOKE THE ACT SUMMARY

Application of foreign common law and statute by Australian court in medical negligence claim: O Reilly v Western Sussex Hospitals NHS Trust (No 6)

Supersedes: Version 1 Description of Amendment(s): Amendments to Stage Test of Capacity. Originated By: The Mental Capacity Act Working Group

Reviewed November 2017

Capacity to Consent Policy

VANCOUVER POLICE DEPARTMENT PLANNING, RESEARCH & AUDIT SECTION

Criminal Law: Implications after road death or injury

RULE 9 INFORMATION FACTSHEET

WYOMING STATUTES, TITLE 7, CHAPTER 4 COUNTY CORONERS ARTICLE 1 IN GENERAL

Mental Health Alliance briefing: Policing and Crime Bill September 2016

THE MENTAL HEALTH ACTS, 1962 to 1964

Police stations. What happens when you are arrested

Inquests the present system and future developments ALEXANDER RUCK KEENE

HDL (2005) 42 abcdefghijklm

Transcription:

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 1983. 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 1983. 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? www.mills-reeve.com 1 July 2009

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 2009. 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. www.mills-reeve.com 2 July 2009

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 1988. 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 www.mills-reeve.com 3 July 2009

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 0121 456 8461 stuart.knowles@mills-reeve.com Jill Weston Associate 0121 456 8450 jill.weston@mills-reeve.com Lucy Johnston Senior 01223 222366 lucy.johnston@mills-reeve.com Katrina McCrory Senior 0121 456 8451 katrina.mccrory@mills-reeve.com www.mills-reeve.com 4 July 2009

Ruth Creed 0121 456 8323 ruth.creed@mills-reeve.com Charlotte Mawdesley 0121 456 8402 charlotte.mawdesley@millsreeve.com Lorna Shastri-Hurst 0121 456 8453 lorna.shastri-hurst@mills-reeve.com 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 OC326165. 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. www.mills-reeve.com 5 July 2009