In the context of Article 2, the State’s obligation to take appropriate steps to safeguard the lives of citizens is a constantly evolving jurisprudence. The categories of cases giving rise to the duty are not specifically defined and can never be regarded as closed.
However, as the Court has underlined many times, Article 2 cannot be interpreted as guaranteeing to every citizen an absolute level of security in any activity in which the right to life may be at stake, particularly when the person concerned bears a degree of responsibility for the events, having exposed himself or herself to danger.[1]
In this latest judicial review decision, the High Court has drawn a line in the sand by clarifying that even where a public body is aware of a real and immediate risk to a person’s life and health and social care professionals have drawn up care plans to ameliorate that risk, the Art.2 duty may still not arise. Helping and supporting an individual, even in the discharge of a public body’s legal duties, does not routinely give rise to the operational Art 2 duty to protect life. More is required than merely offering services to the person that might assist in ameliorating a known risk of death.
The key to when the Art 2 duty will arise remains the Rabone indicia which need to be considered in the specific factual context of the case.
The Facts
Mrs Wolff, who was 74 years old, died at her home from smoke inhalation. The sofa she was sitting on had caught light – probably due to unsafe use or disposal of a cigarette.
Mrs Wolff had lived on her own. She was a hoarder, and her home was unhygienic, filled with detritus and debris. However her mental health, cognition and capacity to make decisions about her own wellbeing had been professionally reviewed on half a dozen occasions at intervals over the previous year and a half, and she was consistently confirmed to have capacity in the relevant domain. After much persuasion, Mrs Wolff had agreed to accept a care package to support her personal hygiene and monitor her diabetic medication compliance. Two years before her death she had also been referred to the London Fire Brigade (LFB) for home safety visits. The LFB tried unsuccessfully to make a visit on eight or nine occasions until, eventually, Mrs Wolff agreed to have smoke alarms fitted. It was these smoke alarms that had alerted neighbours to the fatal fire.
Three months before she died Mrs Wolff had been under the care of the NHS Trust when she had been found confused in the street. After a short in-patient stay, under the compulsion of s.2 MHA 1983, it was determined that she had no mental illness and her symptoms of confusion were believed to have arisen from hyperglycaemia – a result of her not maintaining her diabetes medication regime.
A multi-agency risk assessment conference (MARAC) of health and social care professionals around the time of her discharge considered there was an ‘ongoing risk presented by her unwise decision making’. It was noted that she had been ‘adamant in her expression of not wishing to engage in conversations about her environmental circumstances’ . The professionals had concerns about the state of her home: poorly looked-after dogs, dog mess, risk of electrical injury, risk of leaking water and the fire risk from her unsafe smoking. It was recognised that Mrs Wolff did ‘not respond well to multiple offers of help or professional involvement’. However repeated assessments of her capacity had determined that Mrs Wolff had capacity to make her own decisions about where and how she lived.
After she left hospital, a social worker tried to visit Mrs Wolff at her home on numerous occasions. Each time Mrs Wolff either rebuffed the offers of help or there was no answer at her door. At a professionals meeting just a month before her death, concerns remained and it was questioned whether there were any legal grounds upon which the Police or Social Workers could enter Mrs Wolff’s home without her consent, however all agreed there was no such lawful power. The meeting set an action to carry out a further unannounced visit and to try and assess Mrs Wolff’s mental health again, a further fire assessment was also to be requested from LFB, however none of this had happened before the fatal fire a month later.
The Assistant Coroner’s decision
At a Pre-Inquest Review Hearing the Claimant, Mrs Wolff’s son, expressed concerns that his mother had been let down by one or more of the public authorities who had had recent dealings with her, and that their potential responsibility for the tragedy should be fully investigated in an Art 2 inquest with a jury. The Coroner ruled against him, finding that there had not been a real and immediate risk to Mrs Wolff’s life, and that in any event neither the NHS Trust nor the local Social Services had assumed any responsibility for preserving Mrs Wolff’s life. As the Coroner had put it:
“Citizens who are free to do so, are free to live their lives without restraint or interference from the state. By the same token, the state is not subject to additional scrutiny if it has not incurred obligations or taken on itself the particular responsibilities which the curtailment of rights and freedoms, or the failure reasonably to intervene, involves… the bare fact that [public] institutions may have interacted with the citizen does not thereby determine whether Article 2 is engaged. …The evidence is that she lived in her own home. She had declined additional intervention by the state. Her mental capacity had been assessed and she was deemed to have capacity. She was therefore entitled to exercise choice. She had the right to take unwise or inappropriate decisions. The state does not take on added duties or responsibilities in such circumstances.”
The judge’s view
In the judicial review proceedings Mrs Justice Collins-Rice noted that under s.5(2) Coroners and Justice Act 2009 the test for whether an inquest must ascertain the broad circumstances in which someone died in order to avoid a breach of Convention rights was one of necessity. That test would be passed if it was arguable[2]that a public authority was in breach of a substantive duty under Art.2 ECHR. Whether there was an arguable breach depended upon whether a relevant duty existed in the first place. As for the existence of a duty, only a positive operational duty was argued for here: the leading authority on such a duty was the decision of the Supreme Court in Rabone v Pennine Care NHS Trust [2012] 2 AC 72.
As Rabone makes clear, the existence of a ‘real and immediate risk’ to life is a necessary but not sufficient condition for the existence of an Art 2 duty. The relevant factors (or as Lord Dyson put it ‘indicia’) for a duty arising are (i) an assumption of responsibility (including, but not only, by the exercise of control); (ii) the vulnerability of the victim; and (ii) the nature of the risk – specifically whether it was an ‘ordinary’ risk of the kind that individuals in the relevant category should reasonably be expected to take.
The scope of the obligation was also relevant. The duty must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. As stated in Rabone ‘the standard demanded for the performance of the operational duty is one of reasonableness. This brings in consideration of the circumstances of the case, the ease or difficulty of taking precautions and the resources available.’ Importantly, it also ‘required a consideration of respect for the personal autonomy’ of the deceased.[3]
In respect of Mrs Wolff, the judge held that there had been real an immediate risk to her life: she lived a more than usually risky lifestyle. She hoarded, which was a fire risk, she had poor smoking habits and discarded smoking materials, leaving cigarette butts lying around. The authorities clearly ought to have been aware of a present and continuing risk of a house fire at Mrs Wolff’s home, with an inherent risk of her death. To this extent the judge did not agree with the Coroner’s determination.
Applying Rabone
As for the Rabone indicia, the judge noted that the state had no verifiable power to control or detain Mrs Wolff. There were no Mental Health Act powers to do so and she had capacity to make decisions on her care and residence. As a result there was no basis in law for exercising any control over her. Although the state agents had put together a plan for Mrs Wolff’s welfare and safety, this did not amount to an assumption of responsibility for her. There was no decided authority on Art.2 which came close to supporting the establishment of the positive operational duty on the basis of the existence of a welfare plan, even one relevant to managing a risk to life. Even where the public authorities owed professional duties it was not every case in which health and social care professionals draw up care plans for individuals, or patients spent time in a psychiatric hospital, that an Art.2 duty would arise. Something more was needed when here any plan necessarily had to negotiate Mrs Wolff’s resistance to state interference.
Not every degree of vulnerability will be relevant
As for vulnerability, Mrs Wolff was from time-to-time referred to as vulnerable, and to a degree she was, for both her hoarding habit and her irregularity with her diabetes medication. But not every degree of vulnerability will be relevant: she was not identified as vulnerable on account of her mental health. She did not lack capacity to make her own decisions about her lifestyle. She was fully informed as to the risks she was running and the autonomy of properly autonomous individuals must be respected. That her behaviours, by general social norms, could be labelled unusual, unattractive, unwise or unreasonable was not inconsistent with them being her autonomous choice.
Was this an ordinary risk?
Finally, on considering the nature of the risk of death Mrs Wolff faced, the judge concluded that it could not be considered as extraordinary. The risk of carelessness with a cigarette and flammable furniture was an ordinary one, of the kind that individuals, rather than the state, are reasonably expected to deal with.
On the overall picture the judge agreed with the Coroner’s position: the relevant risk factors were at all times under the properly autonomous control of an individual, in her own home, who was positively resistant to attempted state intervention and upon whose consent to intervention the authorities were ultimately dependent. In the circumstances, the judge was not persuaded that the Art.2 operational duty arose on the facts of this case. To so find would have been to cross the proper boundary between personal liberty and state intervention.
Any arguable breach?
In case it might be said she was wrong about the duty not arising, the judge went on to decide whether there had been an arguable breach of a duty here. She did not consider that there had. Only a month had elapsed between the formulation of the final plan to visit her again and Mrs Wolff’s death (and that included Christmas and New Year). The evidence disclosed no reason to expect that the execution of the plan needed to be prioritised at a pace. The judge noted that the threshold of ‘arguability’ was a low one, but to be credible it must have some evidential base. It was in the judge’s view speculative to say the authorities could and should have done more in the month leading up to Mrs Wolff’s death. The claim was therefore dismissed.
Commentary
This case endorses the principle from a number of ECtHR judgments that Article 2 does not extend to make the state responsible for every activity it is aware of that might put a citizen’s life at risk. Should the person concerned autonomously choose to expose themselves to risk or danger the state will not be deemed to have assumed responsibility for that risk. One such example is Gōkdemir v. Turkey where the absence of safety equipment at the place where the claimant’s husband fell in the sea when fishing did not provide a basis for State liability under Article 2: the danger of drowning after falling into the sea was an obvious risk which an average person would be expected to appreciate and to avoid.
A duty on the state will only arise where there is an assumption of responsibility to avert the particular risk in question. Indeed even being in state control will not of itself be sufficient – as shown in Koseva v. Bulgaria, where a prisoner died as a result of coming into contact with unsecured electrical wiring when trying to remove a pendant light from a prison ceiling.
In the present case all three public bodies involved (the NHS Trust, the Local Authority and the London Fire Brigade) had offered care and assistance to Mrs Wolff and she, as someone deemed to have capacity, was entitled to either accept or refuse.
Procedural matters
Although brought by judicial review a challenge to a Coroner’s Art 2 decision is not judged on classic public law terms. Rather, following Skelton,[4] the High Court is bound to apply ‘heightened scrutiny’ of the decision to a point equivalent to a full merits review. Essentially, in such a JR, the court is re-making the decision for itself.
The Coroner here took a neutral position, although (particularly as the pre-action protocol had not been followed by the Claimant) he had provided a witness statement explaining his decision and some of the background to the case and he appeared through Leading Counsel to assist the Court.
The Claimant’s counsel objected to the court considering what he characterised as the ‘post-hoc reasoning’ of the Coroner’s witness statement. However, the judge found that these ‘afterthoughts’ setting out the Assistant Coroner’s particular professional viewpoint could assist her in her task, as she was not undertaking a standard public law review of his reasoning, but was considering whether the Coroner was right or wrong in his conclusion. The judge therefore chose to read the Coroner’s statement and to hear from Leading Counsel who was present to neutrally assist the court.
Such an approach has been endorsed by the Supreme Court in R (Maguire) v HM Senior Coroner for Blackpool & Fylde & Anor [2023] UKSC 20 where Lord Sales (at §117) lamented the fact that where a neutral coroner did not engage with the arguments “the court did not have assistance by way of full argument to understand the detailed factual circumstances of the case and how they might bear upon the issues in the appeal”. Lord Sales expressed a hope that “in future, I would suggest that in a situation like this the onus on counsel for a coroner, whilst remaining neutral, is to act as an amicus curiae (advocate to the court) and assist to ensure that the court is given the full factual picture, including if necessary by drawing the court’s attention to matters not emphasised or omitted by a claimant, as well as alerting it to relevant law and authorities.
In such cases, the Coroner should be entitled to neutrally, yet very actively, participate and not risk losing the costs protection afforded by R (Davies)(No.2) v HM Deputy Coroner for Birmingham [2004] 1 WLR 2739 should the claim succeed.
Bridget Dolan KC of Serjeants’ Inn Chambers acted for the Coroner in this claim.
Footnotes
[1] See for example Çakmak v. Turkey [2017] Application no. 34872/09 at § 35: Where the deceased lost his life as a result of his own imprudent conduct the State authorities could not be held responsible for his death.
[2] ‘Arguable’ in this context means credible, more than fanciful.
[3] Rabone at §43
[4] See R (Skelton) v West Sussex Senior Coroner [2021] QB 525 at §91