Coronial queue jumping, religious need, fixed policies and fairness

R (Adath Yisrosl Burial Society and anor) v HM Senior Coroner Inner North London and The Chief Coroner of England and Wales (Interested Person) EWHC 969 (Admin), 27.4.2018

This is an unhappy case all round. The silver lining is that the Divisional Court went out of its way to facilitate some public education about that most fundamental and cherished of rights, the principle of equality. Anyone wanting a crash course in: absolute and qualified rights, justification, indirect discrimination and proportionality and the PSED (the public sector equality duty) should head straight to paragraphs 93 to 143 and make an entry on their CPD form. But the take away point is this:

People are different. Treating them equally does not mean treating them the same.

The specific issue was whether the Coroner could and should fast track the administration of deaths of Jewish people or whether religion should be left out of account altogether, so that each death, and family, should await their turn in the coronial queue.

The Divisional Court decided that specific point (in appropriate cases they can and should) and then explained what equality means. We suffer discrimination not only when we are treated differently to someone in an analogous situation but also when, being different, we are not treated differently. We are not all the same, one size does not fit all and if we are to be treated equally, a balance must always be struck.

The Annual Coroners Statistics 2017

The Annual Coroners Statistics for 2017 that have been published this month, may not be top of the reading list for many inquest practitioners, however they are always worth a summary glance, as the figures reflect the huge volume of work that Coroners deal with behind the scenes that is often not appreciated when there are more headline grabbing inquests or judicial review cases to be reported.

The key trends (which it is well worth knowing about) are summarised here, along with important, new information about research demonstrating the reliability of non-invasive post mortem examinations by enhanced CT scanning (PMCT) and why greater use of that modality is strongly to be encouraged.

Summary of the Annual Report 

There were 229,700 deaths reported to Coroners last year. However, the annual number crunching reveals only two notable year on year changes once the impact of DOLS deaths is taken into account: first, a welcome reduction in deaths of those detained under the Mental Health Act and second, a massive increase in the number of non-invasive post mortem examinations conducted.

Key figures

  • 11% fewer deaths reported
  • 18% fewer inquests opened
  • 22% reduction in mental health deaths
  • 120% increase in non-invasive post-mortem examinations.

The Joint Select Committee on Human Rights Enforcement – Inquest Strand

On 7 March 2018 Katie Gollop QC gave oral evidence to the Joint Select Committee on Human Rights in support of the provision of public funding for families at inquests.  

http://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/

A briefing paper provided to assist the committee, which was prepared by Katie in consultation with some other barristers from Serjeants’ Inn chambers, is reproduced below

All barristers at Serjeants’ Inn Chambers are independent, self-employed, sole practitioners. For that reason, Serjeants’ Inn does not have a collective view and the views expressed here are personal. That said, a number of barristers (including two who sit as Assistant Coroners) have contributed thoughts and/or provided examples of inquests (see the appendix at the end) that inform the question: are human rights being enforced in the coronial justice system?

IF THE DECEASED IS BEYOND JUSTICE, WHY DOES AN INQUEST MATTER?

  1. Inquests, properly conducted and where the conclusions are heeded by those with the power to effect change, save lives.
  2. They hold organisations and individuals to account publicly. They expose wrongdoing by the state. They identify and record the facts.
  3. In so doing, inquests:
    1. enable next of kin to understand what happened. And having understood, to grieve.
    2. dispel rumours and conspiracies.
    3. promote public confidence in state agencies – that there was no wrongdoing or that lessons have been learned so no one else will die in the same circumstances.
  1. Lives are saved by the inquest:
    1. Identifying defective systems, policies and procedures.
    2. Identifying individual and organisational practice that is lacking.
    3. Reporting areas where change is required to prevent future deaths.
    4. Providing publicly available information about the circumstances of deaths so that patterns and clusters can be seen.

Article 2 inquest not required if only a “mere error or medical negligence”

Lopes de Sousa Fernandes v Portugal (Application no. 56080/13), ECtHR Grand Chamber, December 2017

The ECHR Chamber judgment in Lopes (15 December 2015) had the potential to expand the situations where a Middleton style “Article 2 inquest” would be required. The Chamber judgment appeared to widen the scope of Article 2 protections to incorporate errors of judgment on the part of health professionals and miscommunication between hospital departments. If poor judgment calls and miscommunications were now to be considered a substantive breach of Article 2 then many hospital deaths would require an inquest fully compliant with Middleton principles. It was perhaps only the unavailability of the judgment in English that held back the flood[1].

If poor judgment calls and miscommunications were now to be considered a substantive breach of Article 2 then many hospital deaths would require an inquest fully compliant with Middleton principles.

However, the Grand Chamber of the European Court of Human Rights (“the Court”) has now reversed the previous Chamber judgment and held, by a 15:2 majority, that there was no violation of the substantive limb of Article 2 in respect of ‘merely’ negligent hospital treatment.

The judgment provides important clarification on substantive Article 2 claims and would appear to limit such claims in the healthcare sphere to cases of a denial of life-saving treatment caused by systemic/structural issues rather than individual error. The Court has now made clear that “mere error or medical negligence” is not sufficient[2].

The case however remains of relevance for inquest practitioners as the Court upheld the finding that there had been a violation of the procedural limb of Article 2 owing to the delay in implementing the extant state structures to investigate the death.

Resuming an inquest after a criminal conviction: Art 2, informal patients and the investigatory obligation

R (Silvera) v Senior Coroner Oxfordshire [2017] EWHC 2499 Admin

Inquests play an essential role in ensuring public accountability when our hard pressed public services don’t always manage to get things right. That inquests allow for the full involvement of the family when publicly exploring the facts and coming to the understanding of what has happened is one of their most important features. The independence of the Coroner (or jury) when reviewing the circumstances of a death is crucial; as is the Coroner’s power to then notify any concerns to those who can take steps to make things safer for us all in the future.

Against that background it should, perhaps, not even need the added impetus of Art 2 ECHR to understand why some deaths are crying out for a publicly held independent investigation. Whilst the coronial jurisprudence around Art 2 ECHR and the investigative obligations that flow from it can be complex, it is hard for the outside observer to discern why the Senior Coroner in this present case was not even persuaded that Art 2 ECHR was engaged, let alone that an inquest was then required to satisfy the State’s investigatory obligations.

The facts

The bare facts are that a woman, who all accepted was mentally unwell, had absconded from a psychiatric hospital by jumping out of a window just one day after the decision had been made to change her status to that of an informal patient (and so not continue with her detention under the Mental Health Act 1983). The woman had also absconded the previous month, and at that time the staff had told police the woman was “very unwell” and “at risk of causing violence”. On this second occasion the police were again asked for assistance to return her to hospital and were told that the staff believed the patient “might do something” and “may be holding [her mother] hostage”. Yet she was nevertheless left in the community un-assessed for a further five days. At some point during that period she killed her mother.

Engaging Art 2

Even a cursory reading of Rabone and Sargantson[1] would suggest it was at very least arguable that the state’s Art 2 obligations were engaged here, given the involvement of these two public bodies – and particularly as an internal NHS inquiry had already pointed to a number of shortcomings in the patient’s care and risk assessment.   Indeed the Chief Coroner, who gave the decision of the High Court, seems to have felt it was so abundantly clear that Art 2 was engaged that he didn’t even bother wasting any space in his judgment explaining why[2].

The Senior Coroner, however, did not accept that Art 2 was engaged and further, even if it was, did not agree that resuming the inquest was required in the context of a guilty plea and the public bodies’ having already conducted their own investigations.

As the Chief Coroner has now made abundantly plain: where there has not already been an independent investigation of a death that has allowed for the proper involvement of the family and with a sufficient element of public scrutiny, then the inquest must be the vehicle to achieve this.