Joy Dove v HM Assistant Coroner for Teesside and Hartlepool  EWHC 2511 (Admin)
The deceased, Jodey Whiting, had a history of back pain and mental ill health, including previous overdoses. She died as the result of an overdose of prescription medication. At the inquest into her death, the Coroner heard evidence that Ms Whiting had been suffering from severe stress in the period leading to her death. A decision by officials within the Department for Work and Pensions (DWP) to stop paying Employment and Support Allowance was said to have contributed to that stress. In addition, Ms Whiting had left notes in her home which suggested that she had intended to kill herself.
In the original inquest the Coroner found that the decisions of the DWP were outside the scope of the inquest and returned a short form conclusion of suicide.
Ms Whiting’s mother applied to the High Court under Section 13 of the Coroners Act 1988 for an order quashing the Coroner’s determination and directing that a new inquest take place to look at the failings of the DWP and their contribution to Ms Whiting’s mental state. Ms Whiting’s mother argued,
- There had been an insufficient inquiry in the original inquest under common law and / or Article 2.
- There was new evidence, namely a case examiner’s report criticising the DWP’s handling of Ms Whiting’s case and a report by a consultant psychiatrist.
Sufficiency of inquiry at common law
Section 13(1) of the Coroners Act 1988 provides:
“This section applies where, on an application by or under the authority of the Attorney-General, the High Court is satisfied as respects a coroner (‘the coroner concerned’) either –
(a) that he refuses or neglects to hold an inquest or an investigation which ought to be held; or
(b) where an inquest or an investigation has been held by him, that (whether by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise) it is necessary or desirable in the interests of justice that an investigation (or as, the case may be, another investigation) should be held.”
The Appellant argued that, in section 13 cases, the Court exercised a broader supervisory function than that would be appropriate in judicial review proceedings and should substitute their own view on the appropriate scope for the inquest, particularly in light of the fresh evidence. The court disagreed. It observed, “it is not the function of a section 13 review to revisit matters lawfully determined by a coroner”. The sufficiency of the inquiry would have to be Wednesbury unreasonable for the court to intervene. The issue of the impact of new evidence was a separate and discrete consideration. In any event, the Court was satisfied that the inquest scope was appropriate.
The case of R (Worthington) v HM Senior Coroner for the County of Cumbria  EWHC 3386 (Admin) DC found that the scope of a Jamieson inquest is clearly wider than merely finding the medical cause of death and may include acts and omissions that are directly responsible for the death. Contrary to the Appellant’s position, however, this case did not broaden the scope of a Jamieson inquest, the delineation of which remains a matter for the coroner’s discretion. In this instance, the coroner considered Ms Whiting’s medical background, medical cause of death, the circumstances in which she was found dead and – on the evidence available – the reasons for her suicidal mental state. That inquiry was sufficient.
The court went on to add,
“Nor do I accept that the Coroner was required by the public interest to undertake a broader inquiry, whether for the purpose of calling the Department to account or for the purpose of enabling questions of the Department’s conduct to be publicly ventilated. The Department’s policies, practices and conduct in decisions to withdraw benefits raise multi-factorial questions which are matters for ministers and for Parliament. The primary purpose of an inquest is to determine by what means someone has died. There is an ancillary power – now contained in para 7 of Schedule 5 to the 2009 Act – to make a Prevention of Future Deaths (“PFD”) report. However, that power does not dictate the scope of an inquest ( R (Butler) v HM Coroner for the Black Country District  EWHC 43 (Admin), para 74 ). In my judgment, an ancillary power to make a PFD report does not imply that a coroner becomes the guardian of the public interest in matters relating to social security. The Coroner has no specialism in these matters and is not well-equipped to undertake such an inquiry.”
It followed from this that the fresh evidence relating to the DWP investigation would not justify a new inquest. Equally, the report of the psychiatrist could not assist in justifying a new inquest. The report did not say the DWP decision to stop payments caused her death. It remains a matter of speculation whether or not it did so.
In determining the application, the High Court provided a helpful summary of Article 2 as it applies to inquests:
The Operational Duty – State responsibility is “the unifying feature” of the application of the operational duty (R (Maguire) v Blackpool and Fylde Senior Coroner  EWCA Civ 738). There is no general duty on the state to protect an individual from taking his or her own life even if the authorities know or ought to know of a real and immediate risk (Rabone v Pennine Care NHS Trust  UKSC 2, para 100 per Baroness Hale). The scope of the operational duty has been extended only on an incremental basis and only in ways that “flow naturally” from existing jurisprudence of the ECtHR. This incremental approach recognises that the scope of the operational duty must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. In determining whether the state has breached the duty, the courts will take into consideration the many competing demands on state resources and the proportionality of any particular state intervention.
The systems duty- is not concerned with errors of individual state actors or with the failure of co-ordination among individual state actors (Lopes de Sousa Fernandes v Portugal  66 EHRR 28, para 187). A breach of the systems duty will involve “an arguable failure of a systematic nature, i.e. a failure to provide an effective system of rules, guidance and control within which individuals are to operate in a particular context” (R (Long) v Secretary of State for Defence  EWCA Civ 770, para 25).
Procedural duty- There is an obligation to investigate deaths for which the state might bear responsibility. There are some categories of case, such as suicides in prison and deliberate killings by state agents, where the procedural obligation is automatically engaged. In all other cases, the adjunctive nature of the procedural obligation means that it is engaged only if there is an arguable case or a “credible suggestion” that the state has breached its article 2 obligations (Maguire) which must be advanced on a “real evidential basis” (R (Morahan) v HM Assistant Coroner for West London  EWHC 1603, para 75).
Applying the Rabone indicia, there was no arguable breach of the operational duty:
- There was no authority to support the proposition that a department charged with allocating public funds by way of welfare benefits has assumed responsibility for preventing the suicide of those receiving such funds; nor that there was an arguable assumption of state responsibility.
- Whilst Ms Whiting’s physical and mental health made her vulnerable, following Maguire, that will not be sufficient for Article 2 where there is no assumption of responsibility by the state.
- The withdrawal of benefits from Ms Whiting did not create a situation which was inherently dangerous and the risk posed to her was not exceptional.
The Court further held that whilst the DWP had made errors these amounted to individual failings attributable to mistakes or bad judgment and were not systemic in nature and accordingly no arguable breach of the systems duty could be established.
Finally, in the absence of an arguable breach of either the operational or systems duty, the article 2 procedural duty did not arise.
Alexandra Tampakopoulos and Nikita McNeill