Category: Article 2 | Right to life


Inquests and legal aid for relatives of the dead

11 May 2010 by

Recent weeks have seen considerable media attention paid to the role of inquests and their increasing significance for relatives of the deceased.

Article 2 of the European Convention on Human Rights, providing legal protection for everyone’s right to life, in some circumstances requires investigation into a death such as an inquest. It places a duty upon the state to ensure the investigation is properly conducted. This may entail providing funding, such as legal aid given to relatives so they may be represented at the hearing.

On 1 May 2010, The Times published “How coroners have become the public voice of grieving relatives” which considered the trend in recent years for coroners to take a role similar to that taken by a chair of a public inquiry. Frances Gibb wrote that David Ridley, a coroner in an inquest for two soldiers killed in Afghanistan, made comments which will give some comfort to grieving relatives. Only two days earlier, another coroner, David Masters, “castigated US authorities’ failure to cooperate in an investigation into the “friendly fire” deaths of three British soldiers”.

The article goes on to note that

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End of the Savage saga as High Court finds hospital liable for patient’s suicide

4 May 2010 by

Savage (Respondent) v South Essex Partnership NHS Foundation Trust (Appellant) [2010] EWHC 865 (QB) – Read judgment

The High Court has ruled that a mental health trust was responsible for the death of a patient who threw herself in front of a train. The judgment marks the end of a long and complex case, and a significant shift in the law relating to public authorities’ responsibility to preserve life under the Human Rights Act. The trust must now pay Mrs Savage’s daughter £10,000 in compensation.

Carol Savage committed suicide on 5 July 2004 at age 50. At the time of her death, she was detained at Runwell Hospital under Section 3 of the Mental Health Act 1983. She had suffered from mental illness intermittently for many years.

After Mrs Savage’s death, her daughter Anna made a claim on the basis that the hospital owed her, as a victim of the death, a duty under the Human Rights Act 1998. The basis of her claim was that the hospital had failed in its duty to protect her mother under Article 2 of the European Convention on Human Rights, the right to life. She also made a claim in her own right under Article 8 (right to family life).

Mental health patients and the right to life

Before making a decision on the liability of the trust, the House of Lords (now the Supreme Court) was asked to decide a preliminary issue relating to it’s responsibility under Article 2 (read decision). The Trust argued that the reasoning in Osman v United Kingdom (23452/94) (1999) 1 FLR 193 ECHR was not applicable to the care of hospital patients. In Osman, the European Court of Human Rights held that there is a positive obligation for a State to take preventive measures to protect individuals whose life is at risk.

The trust argued that applying Osman to mental health care would conflict with other obligations of medical staff to their patients and encourage them to be too restrictive of patients’ liberty for fear that they might commit suicide.

The House of Lords threw out the Trust’s appeal. They held that Article 2 put health authorities under an overarching obligation to protect the lives of their patients. If members of staff know, or are in a position to know, that a particular patient presented a real and immediate risk of suicide, there as an additional “operational” obligation to do all that could reasonably be expected to prevent such an eventuality.

End of the saga

The case has now finally concluded, with Mr Justice Mackay finding that the trust could and should have done more to protect Mrs Savage. He said “all that was required to give her a real prospect or substantial chance of survival was the imposition of a raised level of observations, which would not have been an unreasonable or unduly onerous step to require of the defendant…”

Read more:

  • A note by Philip Havers QC on the 2008 House of Lords judgment.
  • See below (after the page break) for commentary on the House of Lords case by Rosalind English

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Refusal to grant legal aid to mother for inquest into son’s death was unlawful

14 April 2010 by

Humberstone, R (on the application of) v Legal Services Commission [2010] EWHC 760 (Admin) (13 April 2010)

Read judgment

It would seem that legal aid is the topic of the day. Mr Justice Hickinbottom in the High Court has quashed the decision of the Legal Services Commission (LSC) not to grant an applicant for Judicial Review, Mrs Humberson, legal aid for representation at the inquest enquiring into the death of her son, Dante Lee Kamara. The judge took the opportunity set out five criteria which the LSC should apply when considering future applications (listed after the page break below).

Dante died in hospital on 1 July 2008 after an asthma attack. He was aged 10. The judge criticised the LSC’s decision not to grant funding to his mother, saying:

95. I regard 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: one reason why this case is unusual and essentially exceptional is because of the serious allegations Miss Humberstone faces, at the instigation of the agents of state who, she suspects, may have caused or contributed to her son’s death. This case does not open up any floodgate. I do not demur from the view in the Lord Chancellor’s Guidance, which itself reflects comments in Khan, that “in the overwhelming majority of cases the coroner would be able to conduct an effective judicial investigation himself without there being any need for the family of the deceased to be represented” (paragraph 27.4.7 of the Funding Code, quoted at paragraph 37 above). Given the nature of an inquest, and the specialist nature of coroners, that must be so.

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. This also encompasses a duty, in some circumstances, to investigate a death, and if necessary, provide funding so that the investigation, including an inquest, functions properly.

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Chairman of Baha Mousa Public Inquiry will not force the MoD to disclose Attorney General human rights advice

6 April 2010 by

Lord Goldsmith

Sir William Gage, the Chairman of the Baha Mousa Public Inquiry, has refused an application by participants in the Inquiry to compel the Ministry of Defence (MoD) to disclose advice produced by the former Attorney General, Lord Goldsmith.

The MoD claimed legal professional privilege in respect of the Attorney-General’s Advice of 2003 on the application of the European Convention of Human Rights (ECHR) to the British Army’s operations in Iraq during the Iraq war.

The Inquiry, which has been ongoing since July 2009, aims to investigate and report on the circumstances surrounding the death of Baha Mousa by the British Army and the treatment of those detained with him, in particular where responsibility lay for approving the practice of conditioning detainees by any members of the 1st Battalion, The Queen’s Lancashire Regiment in Iraq in 2003.

Read more:

  • You can read the Chairman’s full Ruling here.
  • Read coverage in The Times

Key armed forces case opens in the Supreme Court

16 March 2010 by

Private Jason Smith

The case of R (on the application of Smith) (FC) (Respondent) v Secretary of State for Defence (Appellant) and another is being heard today in the Supreme Court.

The Secretary of State is appealing the 2009 decision of the Court of Appeal: See our case comment from the Court of Appeal judgment.

In short, the respondent’s son Smith was a member of the Territorial Army who had been posted to Iraq in June 2003. He had spent eight days in Kuwait for the purpose of acclimatisation. The room he occupied in Iraq did not have air conditioning. In August 2003 temperatures in the shade reached in excess of 50 degrees C, which was the maximum that available thermometers could measure. He reported sick complaining that he could not stand the heat. Some days later he suffered a cardiac arrest.

In this appeal the secretary of state appeals against the decision of the Court of Appeal ([2009] EWCA Civ 441) that the deceased had been within the jurisdiction of the United Kingdom for the purposes of the Article 1 of the European Convention on Human Rights 1950 and the Human Rights Act 1998 and that, consequently, the inquest into his death had to comply with Article 2.

The hearing is expected to last for four days. See coverage in The Times and the The Guardian.

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New assisted suicide guidance “focused on motivation of the suspect rather than characteristics of the victim” – DPP [updated]

25 February 2010 by

Debbie Purdy

The Director of Public Prosecutions has published the long awaited Crown Prosecution Service guidance on assisted suicide, following the judgment of the House of Lords in the Debbie Purdy case. The DPP website says:

The public can have full confidence in the policy the CPS will follow in deciding whether or not to prosecute cases of assisted suicide, Keir Starmer QC, Director of Public Prosecutions, said today.

Mr Starmer published the policy after taking account of thousands of responses received as part of what is believed to be the most extensive snapshot of public opinion on assisted suicide since the Suicide Act 1961 was introduced. Nearly 5,000 responses were received by the Crown Prosecution Service (CPS) following the consultation exercise launched in September.

Mr Starmer said: “The policy is now more focused on the motivation of the suspect rather than the characteristics of the victim. The policy does not change the law on assisted suicide. It does not open the door for euthanasia. It does not override the will of Parliament. What it does is to provide a clear framework for prosecutors to decide which cases should proceed to court and which should not.

Click here to read the CPS guidance and here to read a summary of the Purdy case. See also the Dianne Pretty case.

Update – 26 Feb 2010: Commentary on the guidance from the Guardian and The Times

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Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany Google Grenfell Health high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
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