Parkin v Inner London East Coroner & Ors [2024] EWHC 744 (Admin) – The limits of Article 2
There is a sort of ritual dance done by those of us who practise in the coronial jurisdiction in health cases. The representatives of the family of the deceased frequently engage in a lonely struggle to persuade the coroner that they should hold an Article 2 inquest. Against them the ranks of lawyers for the health professionals and health organisations unite in arguing that the duty is not triggered.
The argument revolves around the two well-known duties.
The first is the “systems duty”, which imposes on the state the obligation to have in place “appropriate legal regimes and administrative systems in place to provide general protection for the lives of citizens and persons in its territory” [R (Maguire) v Blackpool and Fylde Senior Coroners & Ors [2023] UKSC 20 at page 103].
In a healthcare case, it might be thought that most submissions that this duty had been breached would be unarguable. After all, Maguire [p104] notes that this duty:
“… operated at a high level, was relatively easily satisfied and would only be found to have been breached in rare cases; that, in particular, individual lapses in putting a proper system into effect were not to be confused with a deficiency in the system itself…”
The court went on to hold that the UK had a regulatory regime in place to ensure high standards of care that was monitored and enforced by the Care Quality Commission, and the implication appeared to be that absent some failure at the general regulatory or monitoring/enforcement level, failures in lower level systems would not trigger the duty. Nevertheless the argument is still frequently made in coroner’s courts that the absence (or poor operation) of some rather low-level system (e.g. for recalling patients, or making sure tasks were carried out) represents a state failure.
The second duty, the “operational duty”, is much harder to get a handle on. It comes into play if the state is “on notice that [a person is] subject to a risk to life of a particularly clear and pressing kind” [Maguire at 105]. The paradigm operational duty case is where the state has assumed responsibility for the deceased by imprisoning, conscripting, or otherwise detaining them. However in Rabone & Anor v Pennine Care NHS Trust [2012] UKSC 2 it was said that the duty might be owed even where the person was not detained, if they were sufficiently vulnerable. Rabone concerned a woman who was a voluntary patient in a psychiatric hospital, but the court held that the difference between her and a person detained under the Mental Health Act was one of form not substance as, had she tried to leave against the wishes of the psychiatrists, she would have been detained.
Parkin, which was decided at the end of March this year, provides no new law but is a very useful and fully-worked example of reasoning in an operational duty case. Factually it is some distance from Rabone as the deceased, Mrs Woolf, was a woman confirmed to have capacity, whose home had become a fire hazard because of her hoarding and smoking habits, but who largely (not entirely) refused offers of official help. She died in a fire and at the inquest the Coroner ruled that Article 2 was not engaged. Her son, Gary Parkin, got permission for a judicial review of this ruling.
Mrs Justice Collins Rice conducted a detailed analysis of the authorities on the operational duty. She points out that the test for holding an enhanced inquest is that it is “necessary to avoid a breach of any Convention rights” [Coroners and Justice Act s5(2)]. It will be necessary if there is an arguable breach of (in the case of the operational duty) the state’s positive duty to protect life. Arguable means credible, more than fanciful and it is a low bar [at paras 17-18].
She then points out that there being an arguable breach, even given the low bar, depends on whether a relevant duty exists in the first place [18]. Part of the evaluation of that question is whether there was a “real and immediate risk to life” [Rabone] and a “real risk is one that is objectively verified and an immediate risk is one that is present and continuing” [Maguire at p103, para 241].
Crucially, though, while the real and immediate risk is necessary if there is to be an arguable breach of the duty, it is not sufficient. In Rabone it was held that the operational duty will exist mostly where has been an “assumption of responsibility” by the state, of which detention, imprisonment etc are the paradigm examples. However, the vulnerability of the person is relevant because the ECtHR has found a breach in certain cases even where there has been no assumption of control by the state e.g. in the case of a child at risk of abuse.
The scope of the positive obligation must also be considered. The standard is “reasonableness” and “what more [the authorities] could be expected to do” [Rabone at 101] but the duty “must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, including in respect of the operational choices which must be made in terms of priorities and resources” [Osman v UK 29 EHRR 245 at 116].
Having undertaken this analysis, Collins Rice J concluded that, contrary to the Coroner’s finding, the real and immediate risk did exist given the deceased’s known lifestyle and habits.
That was insufficient to require an enhanced Article 2 inquest, because there was no duty in the first place. Mrs Woolf was a person of confirmed capacity, who had exercised her autonomous right to refuse most of the help offered her, despite considerable efforts on the part of the Fire Brigade, social services and other agencies. Mrs Woolf was not a paradigm (detention) case and the fact that she had been discussed in a multi-disciplinary meeting, or that a care plan existed for her was insufficient to trigger the duty. Rabone was a case of the state not exercising powers it undoubtably had; this was a case where the authorities had no power to detain Mrs Woolf. Rabone, the judge stated, is also authority for the proposition that there is no general duty on the state to prevent people from deliberate self-harm, even where the state knows of the risk [para 58].
Parkin is a good illustration of the complexities in this area. Where, you might wonder, does it leave the more common “suicide” cases – that is where the deceased was being cared for in the community, was threatening suicide and eventually carried it out. It was said in Rabone that the category of cases where the operational duty arises is not closed. In this author’s view that is not carte blanche for a coroner to extend it, rather than waiting for a higher court to do so, but it does introduce a level of uncertainty into the argument.
Arguments on the operational duty require a detailed analysis of the person, their vulnerability, the risk they face whether at their own hand or that of others, their attitude to any risk, their right to autonomy, their mental capacity, and the power of the authorities to force them to accept help or to protect them by some form of detention. The Coroner in this case rightly refused to bring the case under the Rabone principles, or extend the principles to this sort of case, but the pressure to find that the duty applies, in particular from advocates family members of the deceased, is not going to let up.
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