Monday, 18 June 2012

Inquests After Rabone

Coroners' Inquests - The Implications of Rabone-v-Pennine Care NHS Trust

There is litle doubt that the Supreme Court's decision in Rabone-v-Pennine Care NHS Trust will have a signficant impact on the Coronial workload. 

Previously the decisions  of the Court of Appeal in Rabone and in R(Takoushis)-v-Inner North London Coroner were relied upon to rule out Article 2 or "enhanced" inquests into the deaths by suicide of psychiatric patients who had not been detained under the Mental Health Act.

The Supreme Court ruled that an article 2 operational obligation may be owed to a patient who was not detained. So now, arguably, article 2 or "enhanced" inquests ought to be held where there are grounds to suspect that the state or state agents have failed to take reasonable steps which might have been expected to protect the lives of any psychiatric patient - detained or not detained - who was known or ought to have been known to be at a real and immediate risk of suicide.

A risk will be found to have been "real", according to Lord Dyson, where it is "substantial or signficant and not a remote or fanciful one." - paragraph 38. It is "immediate" if it is "present and continuing" at the relevant time.

It is no defence for a public authority to contend that it did not know of such a risk of suicide if it ought to have done so. As Lord Bingham said in Van Colle: "stupidity, lack of imagination and inertia do not afford an excuse to a national authority which reasonably ought, in the light of what it knew or was told, to make further enquiries or investigations: it is then to be treated as knowing what such further enquiries or investigations would have elicited."

There is no requirement to show that the steps which could and should have been taken would, on the balance of probabilities, prevented the death.

The substantive article 2 obligation to protect life has two components - the general or system obligation and the operational obligation - see the judgment of Lord Rodger in Savage. An arguable breach of either should suffice for the investigatory obligation to arise. The investigatory obligation is on the state but is most commonly met in England and Wales, through the Coronial system. To satisfy the investigatory obligation an article 2 inquest ought ordinarily to culminate in "an expression of the conclusion on the disputed factual issues at the heart of the case." - Lord Bingham in Middleton. A conclusion such as : "The deceased took his own life, in part because the risk of his doing so was not recognised and appropriate precautions were not taken to prevent him doing so" did not, thought Lord Bingham, offend rules 36(2) or 42 of the Coroners Rules.

Does the scope of the operational obligation under article 2 extend beyond psychiatric patients at risk of suicide? Lord Dyson's view was that the "the jurisprudence of the operational duty is young,. Its boundaries are still being explored by the ECtHR ... but it seems to me that the court has been tending to expand the categories of circumstances in which the operational duty will be found to exist." Thus the limits of the scope will be tested in future cases involving DOLS patients, patients in treated in the community, patients at risk of death at the hands of others or due to their mental or physical incapacity.

1 comment:

  1. Nigel -thank you for that informative note. This is an important development and I will be circulating around our 'team'. SC