Coroners inquest enough to satisfy Article 2 in mental health suicide case

22 October 2013 by

R (Antoniou) v (1) Central and North West London NHS Foundation Trust; (2) Secretary of State for Health; (3) NHS England [2013] EWHC 3055 (Admin) – read judgment

Where a patient, detained in hospital under Section 3 of the Mental Health Act 1983, takes their own life, Article 2 imposes procedural obligations on the State to investigate the circumstances of the death. These obligations are fulfilled by a coroner’s inquest. Unlike in prison and police station deaths, there need not be any independent investigation system prior to the inquest stage, and nor does Article 2 require one.

Suicide in hospital

Jane Antoniou was detained in the Mental Health Unit of Northwick Park Hospital under Section 3 of the Mental Health Act 1983, when she took her own life “by misadventure” on 23 October 2010. She had long suffered from a mental health disorder and had been in hospital many times. On 13 October, she was detained in hospital under the Mental Health Act following a dramatic increase in her risk of suicide. After ten days on “standard” observation (once an hour), rather than more frequent “close” observation, she was found dead in her room. The morning staff  found JA’s bed/mattress stacked against the door and that there was a ligature (a dressing gown cord) around her neck.

An internal investigation was initially carried out by the Ward Manager within 72 hours of the death. This was followed by another internal investigation by a Serious Untoward Incidents (“SUI”) team. Mrs Antoniou’s husband (the Claimant in this case) asked for an independent investigation to be carried out, but none took place. A coroner’s inquest with a jury then followed, beginning on 1 May 2012, and the jury gave a narrative verdict on 16 May 2012 setting out the circumstances of the death and commenting on the suitability of the systems in place at the hospital to manage Mrs Antoniou’s risk of self-harm.

The Claimant sought to persuade the court that Article 2 required an independent investigation prior to the coroner’s inquest, as in prison death cases. The court disagreed.

When an inquest is held

Under the law in place at the time of the death, while coroners had to hold an inquest with a jury for deaths in prison, there was no corresponding obligation on them to do so for deaths in psychiatric hospital. The coroner in this case chose to summon a jury in any event.

Article 2 obligations

Article 2 ECHR requires the State to protect the right to life. The Strasbourg court has interpreted this to impose substantive obligations (not to take life without justification, and to establish procedures to protect it) and procedural obligations (to investigate breaches of the substantive ones). The State has substantive obligations, as set out in the House of Lords judgment in Savage in 2008, to protect the life of mental health patients who are detained under Section 3 of the Mental Health Act. Since Rabone, this duty increasingly applies to voluntary mental health patients as well. Where something goes wrong with the substantive obligations e.g. a suicide or an attempted suicide occurs, the State then has a procedural obligation under Article 2 to initiate an “effective public investigation by an independent official body” (per Lord Bingham in Middleton, at [3]).

The most far-reaching point of the judgment is that the coroner’s inquest will normally suffice to discharge the Article 2 obligation, which falls on the State apparatus as a whole. Apparently only the Republic of Ireland and Cyprus, out of all the ECHR member states, have a system of independent coroners – civil law systems, such as France and Germany, often assign the equivalent role to their prosecuting authorities. The court interpreted the Strasbourg jurisprudence from cases such as Jordan v UK, Ramsahai v The Netherlands, and Silih v Slovenia as indicating that there is an overall obligation on the State to ensure a prompt examination of cases. It noted that where an initial investigation is conducted by investigators who are hierarchically subordinate to the institution where the death took place (the Ward Manager here, and the Amsterdam Public Prosecutor in Ramsahai), this will not be fatal so long as the investigation can itself be subject to review by an independent tribunal [58].

What this all means for the law in England and Wales is largely set out in R(Amin) v Secretary of State for the Home Department, R(L) v Secretary of State for Justice, and R(Smith) v Oxfordshire Assistant Deputy Coroner. In Amin, Lord Bingham stated that the law of England has for centuries required a coroner to investigate deaths in prison and that this investigation, carried out in public and where the deceased’s family can be represented, discharges the Article 2 obligation. In L, a young man had failed in his suicide attempt whilst in a Young Offenders’ Institute and had been left with permanent brain damage. There was a need for an enhanced investigation in that case, because the prison’s system of suicide prevention had apparently failed – and as he had not died, there could be no coroner’s inquest.

In Smith, the court set out that there is a staged system of investigation of deaths, whereby the first stage takes place automatically in relation to any death, whereas the second stage will vary depending on whether the first stage has shown non-compliance with a substantive Article 2 obligation. In some cases, a Middleton inquest will be triggered automatically. In others, something more than a Middleton inquest (such as a public inquiry) may even be necessary. The essential point, however, is that to claim that the initial investigation needs to be Article 2 compliant is to put the cart before the horse – it is the initial investigation which establishes the type of inquiry which is required, then the coroner’s inquest which ensures Article 2 compliance. If an independent investigation were required from the outset, the Supreme Court would have said so in Smith.

Where there is a death in prison or in police custody, there is an independent investigation before the coroner’s inquest, conducted by either the PPO (Prison Ombudsman) or the IPCC. The court concluded that:

“it does not follow, in our view, that the State must, as a matter of law, institute the same system to investigate suicides of detained MHA patients. We have concluded that it does not have to do so as a matter of the existing law. Whether the UK wishes to create such a system on grounds of public policy is a different point.” [79]

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Read more:

• No article 2 inquest over 14-year-old overdose death, despite failings
• The 21st Century Coroner
• Analysis | Rabone and the rights to life of voluntary mental health patients – Part 2/2