No article 2 inquest over 14-year-old overdose death, despite failings

Methadone

Kent County Council, R (on the application of) v HM Coroner for the County of Kent (North-West District) & Ors [2012] EWHC 2768 (Admin) – read judgment

The High Court – including the new Chief Coroner – has held that the enhanced investigative duty under Article 2, the right to life, is not engaged in an inquest into the death of a 14 year old boy, despite “many missed opportunities” for intervention by social services being identified.  

Another sad case on when and how the enhanced investigative duty under Article 2 ECHR is engaged. EB, a troubled 14 year old, died of a methadone overdose in November 2009.  He was known to the claimant’s social services department, who were the subject of criticism in a serious case review following his death.  The review found that there had been “many missed opportunities” to intervene, but felt that:  “It cannot be concluded that a different approach … would have prevented [EB]’s death, but there is a possibility that there may have been a different outcome.”  The council have since apologised unreservedly to the family.

The question for the coroner was whether or not the enhanced investigative duty under Article 2 ECHR was engaged, such as to necessitate a Middleton type of inquest (as opposed to the ‘normal’ Jamieson investigation).  The difference between the two is about how ‘how’ is interpreted: in a Middleton inquest the coroner will ask “by what means and in what circumstances”the deceased died, whereas in a Jamieson inquest the question is only “by what means”.

The coroner decided in EB’s case that the enhanced investigative duty was engaged because of what is known as the operational obligation – i.e. there was an arguable case that the state was under a positive duty to protect EB from a real and immediate risk to his life.  The case law on the operational duty is discussed at some length in previous blogs, which are available here.  This was challenged by the claimant, with whom the High Court agreed.  Mr Justice Foskett (Foskett J) and HHJ Peter Thornton QC – the new Chief Coroner – held that:

  • There was “no doubt” that EB’s case “enters into the potential territory of the operational duty.”[44]  EB was a vulnerable child who social services had assessed and for whom various interventions had been recommended.
  • However while EB was at risk, that risk when viewed objectively was not a “real and immediate” risk to life:  “It was a risk of harm, but that should not, with all the wisdom of hindsight, be equated with a risk to life.”[46]
  • Further, while there was a need for some action from the claimant in his case, there was “no certainty or even likelihood that EB’s death would have been avoided” had such action been taken. [45]
  • The claimant had some measure of responsibility for EB as he was a child “at need” under s.17 of the Children Act 1989.  However, he was one of five or six thousand such children within the council’s jurisdiction, and in such circumstances: “It would not be proportionate to require a local authority to exercise sufficient control over all of these children so that an operational duty is exercised in every case.”[51]
  • The court accepted the claimant’s argument that the case did not reveal any systemic failings such as to engage Article 2 because the statutory systems for children in need of care were in place and were adequate [25].  It is relevant to note that there is an important distinction between an appropriate system being poorly implemented, and an inappropriate system per se.
  • The coroner’s reasons for his decision could have been fuller, but were probably sufficient.  In such circumstances coroner need to give sufficient reasons for the person who had lost to know not only that he has lost, but why. [56]
  • The coroner was entitled to decide that the inquest should be held with a jury. [59]

The High Court therefore quashed the coroner’s decision to hold a Middleton inquest, while concluding – as courts in such circumstances tend to do – that the difference between that and a Jamieson inquest was “debateable”.

Analysis

The decision in EB’s case reflects a couple of interesting points about the enhanced investigative duty and its application to inquests.  The broadening influence of the Supreme Court’s decision in Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2 is evident in the finding that there was “no doubt”that there was, potentially, an operational obligation to protect EB’s life despite that fact that he was not detained by the State (a position that would not have been arguable before that judgment).

However, the court found that on closer examination there was no such operational duty for two reasons: first, there was no “real and immediate” risk to life; and second, the sheer number of children in similar circumstances to EB meant that it would be disproportionate to impose an operational duty in his case.

The latter consideration – which was discussed by Lord Dyson at paragraphs 21 to 43 of Rabone – is one that is sometimes overlooked in the rush to argue about “real and immediate” risk.  Finally, the court fell back on the traditional approach of reciting authority to the effect that the threshold for the operational duty was a high one [43], notwithstanding Lord Dyson’s clear preference in Rabone [37-39] for sticking to the words “real” and “immediate” without further judicial exegesis.

It is also interesting to note that the decisions of both the coroner and the High Court came before the inquest heard evidence.  One of the (many) difficulties in having both Middleton and Jamieson inquests is that the coroner is required to decide which should be held at the outset of his investigation.  Sometimes this can lead to a provisional decision being taken – for example, to start with a Middleton type of inquest with a promise to keep the position under review.  In this case, the High Court were willing to take a firmer line, deciding even on the limited evidence available to them that Article 2 could not be engaged.  It will be interesting to see if this approach is something that the Chief Coroner will continue to encourage in his new role.

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