The Meaning of Death

Written by: Bridget Dolan KC
Published: 14 February 2020

Namiq v Manchester University NHS Foundation Trust [2020] EWCA

Readers of this blogger’s generation will already know that the answer to the Meaning of Life is 42. The Court of Appeal have now addressed a question too momentous for even Douglas Adams to tackle – what is the meaning of death?[1]

Last month in Manchester University NHS FT v Midrar Namiq (a minor) and others [2020] EWHC 6 (Fam) Lieven J was asked to consider the heart-rending issue of whether ventilation should be withdrawn from a severely brain injured baby (see our related blog here).

The Supreme Court had already confirmed in a number of appeals (including those launched on behalf of both Charlie Gard and Alfie Evans), that the Judge must apply the best interests tests in serious medical treatment cases. However, here the Trust’s position was that the child was in fact already dead and that there can be no best interests assessment of a person who is no longer legally alive. Hence, said the Trust, the Court’s function in Midrar’s case was to assess whether the relevant clinical testing had established that he was brain stem dead. In contrast, in addition to arguing that the brain stem testing had not been properly carried out, Midrar’s parents argued that the Court’s role was to apply the best interests test to the question of whether the intensive care support that was still keeping oxygenated blood circulating his body should be removed.

One difficulty was that, despite clinicians and paramedics regularly declaring life to be extinct, there is no legal definition of death in any statute. Death is clinically and not legally defined. Although the common law position was considered in 1993 when the House of Lords reviewed the position of Tony Bland who had been in PVS for three years after being caught in the Hillsborough crush. Although Tony Bland had no consciousness his brain stem was still functioning, which controlled his heartbeat, breathing and digestion, and as such, said their Lordships, he was not dead. Indeed, the medical consensus that death was to be diagnosed by an absence of brain stem function was expressly endorsed in Bland[2].

Article 2 and deaths in the community: the sequel

Written by: Bridget Dolan KC
Published: 13 February 2020

R (Lee) v HM Assistant Coroner for Sunderland [2019] EWHC 3227 (Admin)

Regular readers of our blog will recall this case dealing with the tricky issue of whether Art 2 obligations are engaged when a person dies whilst receiving psychiatric care in the community (see the earlier blog here).

In Lee v HM Assistant Coroner for Sunderland HHJ Raeside QC produced a complex extempore judgement that provided the very simple answer: you need look no further than Lord Dyson’s explanation at paragraph 34 of Rabone, when he analysed the potential engagement of the operational Art 2 duty by reference to the threefold factors of assumed responsibility, vulnerability and risk

However the judge deftly sidestepped answering the question on the particular facts of the case before him and instead remitted the case back to the coroner to decide. HM Assistant Coroner for Sunderland has now had a second bite at the cherry and produced an elegant set of reasons for her finding again that Art 2 was not engaged. Although, as a decision by a coroner, the reasoning has no precedential weight, those reasons attached here are well worth reading for their detailed exposition of the application of Art 2 to inquests and a clear example of how to apply the indicia in Rabone to the facts of a particular case.

Damages of £5,000 for delay to an Art 2 inquest

Written by: Bridget Dolan KC
Published: 22 January 2020

Jordan v The Chief Constable of the PSNI [2019] NICA 61

The latest instalment of the long running Pearse Jordan inquest saga provides an important warning to all coroners and other public bodies involved in Article 2 investigations where there is delay in coming to inquest because of shortcomings on the part of a public body (including the court).

Mr Jordan’s family have now had their second award of damages upheld by the Northern Irish Court of Appeal. The appeal court found that a sum of £5,000 represented ‘just satisfaction’ for the exacerbation of the bereaved person’s ‘feelings of frustration, anxiety and distress’ arising from 14 months of culpable delay in bringing the case to inquest. This assessment of damages took into account that an award of £10,000 had already been made by the European Court of Human Rights in 2001 as compensation for earlier delays in investigating Mr Jordan’s death.

When might Article 2 apply to deaths of patients in the community?

Written by: Bridget Dolan KC
Published: 13 December 2019

R (Lee) v HM Assistant Coroner for Sunderland [2019] EWHC 3227 (Admin)

It is now commonplace in advance of inquests for coroners to rule on their scope, including whether possible state responsibility requires the inquest to meet the UK’s Art 2 procedural obligations. That task is not easy when the extent of Art 2 involves a complex question of law to be applied in factual circumstances that are often still to be uncovered. Added to that, the jurisprudence of the Art 2 duty is still evolving as its boundaries are repeatedly explored by the courts as new circumstances are presented for consideration.

The case of Rabone v Pennine Care NHS Trust[1] was one such new circumstance and considered whether there was an operational duty owed under Article 2 to informal psychiatric in-patients who were not detained under the Mental Health Act. Although Melanie Rabone died when on leave outside of hospital the Supreme Court considered that the operational duties did extend to the circumstances of her case – taking account of her extreme vulnerability and the exceptional nature of the risks alongside the degree of responsibility and control assumed by the NHS Trust.

Following Rabone the question arises of whether Article 2 procedural obligations might be engaged after the death of a person who is a mental health patient receiving care in the community. In this blogger’s experience several coroners (and NHS Trusts facing civil claims) have since accepted that an Art 2 duty can be owed to a community patient, particularly where the alleged shortcomings include a failure to admit a vulnerable person who was at obvious and imminent risk of suicide. However until recently no challenge to a coronial decision on the application (or non-application) of Art 2 at a community patient’s inquest has been reported from the higher courts.

The applicant in R (Lee) v HM Assistant Coroner for Sunderland has now invited an important extension of the law beyond Rabone. However, if you are hoping for clear or simple answer to this vexed question be ready for disappointment. To paraphrase this very lengthy extempore judgment – delivered by HHJ Raeside QC after hearing two days of legal argument – it is all very complicated and will always depend on the facts.

Screening Inquest Witnesses: An appropriate protection or a disproportionate intrusion into open justice?

Written by: Bridget Dolan KC
Published: 12 November 2019

Dyer v Assistant Coroner for West Yorkshire [2019] EWHC 2897 (Admin)

If the tribunal, the lawyers and the jury who will be making the decision can watch a witness as they give live evidence one might ask why should it matter if the rest of the public and press might not see the witness’ face?

However it matters a great deal if one is to have any respect for the constitutional principle of open justice which, as one of the core safeguards in our judicial system, should be fundamental to all courts and tribunals exercising the judicial power of the state.

In Coroners courts, as in the rest of the British justice system, the notion that justice should not just be done, but also be seen to be done is far more than an often repeated trope; it is something that rightly weighs heavy when the loss of a life is at the centre of the inquiry, and particularly so when agents of state are implicated in the tragic death of a black man in custody. It is, therefore, unsurprising that in the recent case of Dyer heavy justification was required for preventing the deceased’s parents, partner and son from watching the faces of the police witnesses whilst they gave their inquest evidence.

Although balancing potential risks to police officers from those who may wish them harm could justify their giving evidence behind screens and so not open to public scrutiny, it was a step too far, held Mrs Justice Jefford, to also prevent the close family of the deceased from seeing the relevant officers’ faces.