A welcome clarification for relatives of the dead

Legal Services Commission v Humberstone, R.( On the application of) [2010] EWCA Civ 1479 (21 December 2010) – Read judgment

The high court was right to quash the decision of the Legal Services Commission not to recommend public funding for a mother to be represented at the inquest into the death of her 10-year-old son. However, the court of appeal has ruled that the judge’s conclusions on when the state was obliged to conduct an expanded inquest into a death were confused.

The court of appeal has upheld the decision of Mr Justice Hickinbottom in the high court, although Lady Justice Smith came to her decision by a different route and criticised his reasoning. The case is important as it lays down guidelines for when legal representation for relatives of the dead should be funded at inquests, an often controversial issue, and how this fits with the state’s duties to investigate deaths under the European Convention on Human Rights. These duties have, partly as a result of Mr Justice Hickinbottom in this case, fallen into confusion, and the court of appeal has given a welcome clarification.

I posted on the high court decision in April. Mr Justice Hickinbottom quashed the decision of the Legal Services Commission (LSC) not to recommend Mrs Humberstone legal aid for representation at the inquest into the death of her son, Dante Lee Kamara, who died in hospital on 1 July 2008 after an asthma attack.

The judge said the “failure of the Commission to take into account the true nature and seriousness of the allegations Miss Humberstone faces at the inquest as a particularly serious defect in the decision-making process

Following the high court decision, the LSC relented and recommended that Mrs Humberstone receive funding for her son’s inquest.

Duty to investigate deaths

The state has a duty to investigate deaths under human rights law. Article 2(1) of the European Convention on Human Rights provides: “Everyone’s right to life shall be protected by law“. That primary obligation includes not only a duty on the state not to take life, but also a duty on the agents of the state to take appropriate legislative and administrative steps to protect individuals from threats to life when in their care. The court referred to a number of examples at paragraph 21, and we have posted on the most recent case of Savage, where the House of Lords found that hospital authorities must make appropriate provision and to adopt systems of work to protect the lives of patients in their care:

Article 2 also includes a duty, in some circumstances, to provide funding so that the investigation, including an inquest, functions properly.

Public funding for legal representation can be granted by the LSC (soon to be absorbed into the Ministry of Justice) at certain inquests where it is possible that the death was the fault of the state. It must be in the “wider public interest” for funding to be granted, or be a case where “funded representation is likely to be necessary to enable the coroner to carry out an effective investigation into the death as required by Article 2“.

Stuck in the middle of Middleton

The boundaries of the article 2 investigative duty have in recent years been clarified and expanded, most famously in the case of R (Middleton) v West Somerset Coroner, in which the House of Lords held that, in a case where the state’s duty under article 2 was arguably engaged, the inquest had to be wider than it would be under the Coroners Rules 1984, and include consideration of ‘by what means and in what circumstances’ the deceased had died. These have become known as “article 2” or “Middleton” inquests.

On of the features which distinguishes article 2 inquests is that the state may need to do more to investigate the death adequately, which can include providing funding for legal representation.

This is all a bit confusing. Firstly, it is not always clear whether a death necessitates a no-frills, ordinary inquest, or a pull-out-all-the-stops article 2 inquest, and Mr Justice Hickinbottom was not clear on this either. Second, it is somewhat confusing to refer to the expanded inquests as “article 2” inquests, since the no-frills version is also a means of the state discharging its article 2 investigative obligations.

When to pull out all the stops

The main question in this appeal was whether  the state’s obligation to conduct an effective investigation into a death arises in all cases where a death occurs while the deceased was in the care of the state, or whether it arises only in a much narrower range of cases where it is arguable that the state has breached its substantive article 2 obligations. Mr Justice Hickinbottom had held that the obligation was very wide indeed, ruling that:

that the state may have a duty to hold an investigation into a death – or, rather, support a mechanism for investigation into a death – even where there is no reason to believe that state agents have failed to perform the primary duty imposed by Article 2

He went on to say that “doubt” was enough to trigger an article 2 investigation in cases where a person has died in the care of the state:

the trend in these cases is towards recognising that the state has an obligation to ensure that an effective investigation is conducted in any death in which there may be doubt as to the circumstances of death

This would effectively mean that all deaths in hospitals, police stations or any other state institutions attract the expanded inquest. Matt Hill argued on this blog that this relied on a fundamental misunderstanding of the case law in this area:

Humberstone provides a warning about the unhelpful and imprecise terminology that has developed in this area… In any investigation into any death Article 2 is engaged. What is relevant to the legal analysis and the practical steps that follow is whether it is the general or the enhanced obligation that is triggered.

The court of appeal agreed. Lady Justice Smith gave two examples when article 2 could properly be said to be engaged. The first is the

very wide range of cases in which there is an obligation to provide a legal system by which any citizen may access an open and independent investigation of the circumstances of the death. The system provided in England and Wales, which includes the availability of civil proceedings and which will in practice include a coroner’s inquest, will always satisfy that obligation.

So far, so uncontroversial. However, the second circumstance, which would trigger pull-out-all-the-stops inquests is

in the much narrower range of cases where there is at least an arguable case that the state has been in breach of its substantive duty to protect life; in such cases the obligation is proactively to initiate a thorough investigation into the circumstances of the death (para 67)

Lady Justice Smith described the circumstances where the latter category of inquests would be appropriate:

Those limited circumstances arise where the death occurs while the deceased is in the custody of the state or, in the context of allegations against hospital authorities, where the allegations are of a systemic nature such as the failure to provide suitable facilities or adequate staff or appropriate systems of operation. They do not include cases where the only allegations are of ‘ordinary’ medical negligence. (para 58)

Mr Justice Hickinbottom failed to appreciate the distinction between the two kinds of inquests, and in fact confused the two obligations. As such, his reasoning – although not his decision in this particular case – has been rejected.

This will be a relief to the LSC, as the implication of Mr Hickinbottom’s decision was that all cases, including those of simple medical negligence, could attract the additional funding requirement, which could have led to a very large bill indeed. It could also make many inquests longer and more complex than is necessary or proportionate.

The court went on to reexamine this particular inquest, and found that due to evidence which had come to light since the decision, it did attract the wider article 2 duty, as the new evidence discloses sufficient grounds for concern about the resources and operational systems of the Yorkshire Ambulance Service. The possibility of systemic problems triggers the wider obligations.

As to when relatives can receive funding, the court was dissatisfied with the Lord Chancellor’s current guidance, and made clear that case-law stating that funding would be in “extremely unusual” or “exceptional” circumstances was too extreme. Rather, there would be “limited circumstances” where an expanded inquest would occur (para 58).

Clearer

Where does this leave relatives of the dead? The court of appeal’s decision has restored some clarity to the question of whether an “article 2” expanded inquest is required or not, and the correct test is whether there is an “at least an arguable case that the state has been in breach of its substantive duty to protect life“. This will include all cases involving deaths whilst the deceased was in the custody of the state or, in cases involving hospital authorities, “where the allegations are of a systemic nature such as the failure to provide suitable facilities or adequate staff or appropriate systems of operation“.

It should, in theory at least, be easier to predict when a relative will receive funding for representation, and their case will not have to be exceptional in order to qualify.

However, the clarification of the rules will not solve the wider problems of the coronial system. In practice, each coroner conducts inquests in quite different ways, and an “article 2” inquest in one coroners court may look very similar indeed to an ordinary inquest in another. Given that the government has shown a lack of interest in instigating long-awaited reforms to the system, this postcode lottery (to borrow a phrase from the tabloids) will continue.

The decision is still a welcome clarification from the court of on the state’s duties to investigate deaths, which will hopefully make it easier for coroners to decide when to trigger a pull-out-all-the-stops inquest and relatives of the dead to secure funding. This is unlikely to be the end of the issue, however, as the trend seems to be for an ever-expanding category of deaths to attract the wider duties. Perhaps Mr Justice Hickinbottom will ultimately have the last laugh.

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