Important Inquest Update – Deaths of Psychiatric Patients

Summary

On Friday 20 February Mr Justice Green handed down his judgment in the Administrative High Court in the case of Joanna Letts v the Lord Chancellor and the Equality and Human Rights Commission ("EHRC"). This matter was a judicial review of the criteria that the Legal Aid Agency applies to determine whether relatives should be granted legal aid for representation at inquests into deaths which may engage the duties of Article 2 of the European Convention on Human Rights. It only applies to deaths of psychiatric patients.

The application was successful; Mr Justice Green held that the criteria and its associated guidance on the law was materially in error. He determined that the guidance incorrectly only recognised one, instead of two, types of case in which the procedural obligation under Article 2 is triggered.  It failed to recognise the type of case in which the procedural duty is automatically invoked without the need to demonstrate an arguable breach. 

This judgment is likely to lead to more families of deceased psychiatric patients being granted legal aid and being represented at inquests.

Article 2 – a reminder

Article 2 ECHR imposes three distinct duties upon the state:

1. A negative duty to refrain from taking life save in exceptional circumstances (as set out within Article 2(2));
2. A positive duty to conduct a proper and open investigation into deaths for which the state might be responsible (the “Procedural Obligation”);
3. A positive duty to protect life in certain circumstances (the “Operational Obligation”) which has two distinct elements:

a.       General duty on the state to put in place a legislative and administrative framework to provide effective deterrence against threats to the right to life; and 

b.       In “well defined circumstances” the state should take “appropriate steps” to safeguard the lives of those within its jurisdiction, including a positive obligation to take reasonable steps to avoid a real and immediate risk to the life of an identified individual that the authorities knew, or ought to have known about, at the time.

These duties have been introduced into domestic law by way of the Human Rights Act 1998.

Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2 gave further guidance on when the second limb of the Operational Obligation would be triggered:

• Assumption of responsibility by the State for the individual's welfare and safety (including by the exercise of control over the individual – this would include both informally and formally detained patients under the Mental Health Act 1983);
• Vulnerability of the individual;
• Exceptional rather than ordinary risk;
• Real and immediate risk (necessary but not sufficient in itself);
• Dangers for which the State is somehow responsible.

The State has a duty to take positive steps to safeguard a vulnerable individual, who is under its control, and has a real and immediate exceptional risk.

In terms of the Procedural Obligation, the investigation following a death arising in Article 2 circumstances must be:

• Prompt and proceed with reasonable expedition;
• Independent from the State and independent of those implicated in the events being investigated;
• Open to public scrutiny to a degree sufficient to ensure accountability;
• Involve the next-of-kin in the investigative process.

Mr Justice Green considered that there are a number of purposes of a Procedural Obligation investigation:

• To ensure that the full facts are brought to light; 
• To prevent any appearance of collusion or tolerance of unlawful acts;
• To maintain public confidence in the State adhering to the rule of law;
• To expose any past violations of the Substantive Obligations or to demonstrate that the State was not at fault;
• To allay any unjustified suspicion of deliberate wrongdoing;
• To learn lessons.

The key question in respect of this case, therefore, is whether the requirement to involve the next-of-kin includes an obligation to ensure that they have legal representation.

Interface between Article 2 and Inquests

Article 2 imposes a consequent Procedural Obligation: to ensure an effective public inquiry by an independent official body into any death where the substantive Operational Obligation may have been violated.  An inquest is often the mode of inquiry used to meet this duty.

Where the inquest is the means by which the procedural duty under Article 2 will be effected, the inquiry into “how” should be sufficiently broad to identify the cause or causes of the death; it should be interpreted as "by what means and in what circumstances."

However, simply because the Operational Obligation may have been triggered, does not mean that the inquest has to fulfil the Procedural Obligation. The Court of Appeal has suggested that normally, the availability of remedies in the civil, criminal and disciplinary forums, together with a traditional Jamieson style inquest, would be sufficient to meet the Article 2 requirements in all cases of deaths in NHS hospitals. The exception would be where there were allegations of gross negligence (sufficient to sustain a charge of manslaughter).

In reality, most Coroners state that their inquiry will be full, fair and fearless and in terms of how the inquest is managed; scope, length, jury and number of witnesses – there is little difference between an Article 2-compliant inquest and a more traditional one.

Legal Aid for Families at Inquests

The test for whether families receive legal aid for legal representation at inquests is set down in the "Lord Chancellor's Exceptional Funding Guidance (Inquests)" (the "Guidance"). At the time the judicial review was brought, the Guidance had 2 criteria which must be met for legal aid to be granted:

1. The case must fall within Article 2; and
2. Legal representation for the next-of-kin must be necessary to enable them tobe properly involved in the inquest.

The Guidance advised caseworkers that funding should be granted where the procedural obligation arises and representation for the family of the deceased is required to discharge it.  It further advised that in effect caseworkers should first be satisfied that there is an arguable breach of the state's Substantive Obligation and then, if that criteria is met, go on to decide whether funding representation is required to discharge the procedural obligation.  There was no reference to a category of cases which automatically trigger the Procedural Obligation without a need for there to have been an arguable breach of the Substantive Obligations.

Joanna Letts' Case

Joanna Letts argued, and was supported by the EHRC, that there are two types of cases which fall within Article 2:

1. Cases where in order to trigger the Procedural Obligation, there needs to be at least an arguable breach by the State of the Substantive Obligations (the "Non-Automatic Cases"); and
2. Cases which automatically trigger the Procedural Obligation – without the need to show that the State is/was arguably in breach of the Substantive Obligations (the "Automatic Cases").

She argued that the Guidance gave a misleading impression of what type of case falls within Article 2; specifically, that case workers were not appropriately guided around the Automatic Cases, which do not require them to consider whether there is any evidence of an arguable breach by the State of the Substantive Obligations. This meant that case workers at the Legal Aid Agency would wrongly refuse funding.

The Facts

Christopher Letts was Joanna Letts' brother. He was initially an informal (voluntary) inpatient in a psychiatric hospital and latterly detained under section 5(2) of the Mental Health Act 1983 ("MHA") after an absconsion. He was subsequently subject to assessment under the MHA for formal detention under section 2 or 3; neither of the doctors who assessed him recommended that he be formally admitted. Mr Letts decided that he wanted to leave hospital; as an informal patient, his wishes were respected. Sadly, he committed suicide 3 days after his discharge from hospital.

His family argued that the circumstances of his death fell into the category of Automatic Case where there should be no need to show an arguable breach of the Substantive Obligations by the State to trigger the Procedural Obligation.

Court's Decision

It was not necessary for the Court to determine whether Article 2 was invoked in respect of the specific facts surrounding Mr Letts' death for the purposes of this judicial review because Mrs Letts had already been granted legal aid.  However, Mr Justice Green agreed with Joanna Letts that the Guidance suggested that the case worker had to make an assessment, in every case where legal aid was applied for, of whether the State had arguably breached the Substantive Obligations; i.e. it suggested that all cases were Non-Automatic Cases. He determined that there is a category of Automatic Cases.

Because Mr Justice Green had found that two of the primary purposes of the Procedural Obligation were to demonstrate that the State was not at fault and to allay any unjustified fears of deliberate wrongdoing; he concluded that it would be a nonsense therefore, to suggest that next-of-kin only required legal representation where there was an arguable breach of the Substantive Obligations.

In reviewing the previous case law, the Judge recognised the following as examples of Automatic Cases (where there is no need to show any evidence of arguable breach of the Substantive Obligations to trigger the Procedural Duty):

• Prisoners (where the death is not natural causes);
• Patients detained under the Mental Health Act 1983;
• Soldiers who die during active service.

Mr Justice Green acknowledged that the Automatic Cases included those where there is a:

'death in circumstances where there is a hint of state control which creates the hypothetical "possibility" of violation'

He noted that the trigger is a death where the patient is under the control or care of the State. The factors that the Judge considered would be relevant to consider include:

• Whether the death was natural or self-inflicted?
• Whether the deceased could have been subject to the Mental Health Act 1983?
• Whether the deceased was under the care of a hospital or other proxy for the State – at a proximate time to the death?

What does this mean in practice?

In all cases of psychiatric patients where the second limb of the Substantive Obligation is triggered and there is a death, the Procedural Obligation of Article 2 is likely to be invoked; irrespective of whether there is any evidence that the State has breached the Substantive Obligation. The crux of the issue is whether the patient was under the care and control of the State and there is a possibility that the Substantive Obligations of Article 2 were in play.

The scope of mental health cases where the Substantive Obligations are triggered is not yet clear; for example, whether the Substantive Obligations still apply to a patient who was discharged from hospital some months prior to their death or where the patient was under the care of community mental health services.

Where the Procedural Obligation is triggered (automatically or through an arguable breach of the Substantive Obligations), it is likely that legal aid will be granted to families for inquests. This is likely to lead to more families having legal representation at the inquest.  It has also already led to family's solicitors relying upon this case to argue in respect of inquests that the Procedural Obligation is engaged in respect of wider groups of psychiatric patients.