Healthcare - March 2010
Information fit for a Jury?
R on the Application of Lewis v HM Coroner for Mid and
North Shropshire
In this case, the Court of Appeal was asked to
consider whether a coroner’s duty to carry out an Article 2 inquest
was properly met when matters that could have contributed to a
death in custody were not put to a jury for consideration prior to
a verdict being delivered.
The deceased was a young man who had been
sentenced to a term of imprisonment at a young offender’s institute
for robbery. He had a history of self harm which was apparently
overlooked by the authorities when his pre-sentence report was
prepared. After sentencing he threatened to harm himself and the
probation service warned the prison authorities that he was at
risk. Consequently he was reviewed by a registered mental nurse and
by a GP in prison. At that time he was not considered to be at risk
of self harm but rather a risk to a cell mate. As a result of this
assessment he was placed in a single cell. No attempt was made to
refer him to a psychiatrist.
Prior to his death he was found by the prison
authorities to be in a distressed state and was attempting self
harm. He was placed on night watch, with directions being given
that he should be visited by a prison officer three times during
the night. In spite of these measures, the deceased hung
himself in his cell. Evidence was given at the inquest that a
prison officer saw the deceased hanging in his cell but did not
enter to cut him down. The officer had not received suicide
prevention training, did not possess a specialist piece of
equipment designed to cut down a person hanging from a ligature
without causing them further harm and although the prison officer
put out a call for assistance when he discovered the deceased, he
did not use the appropriate call code and, consequently, urgent
assistance was not given to the deceased. It was not known
whether these factors contributed to his death.
An inquest was opened. The coroner set out to
investigate a number of matters including: the nature of the
information passed to the prison service about the deceased’s pre
existing vulnerability to self harming behaviour, the care he
received in prison, the initial clinical assessment that was
carried out and which resulted in the deceased being housed in a
single cell, the procedure used inside the prison in respect of
prisoners who had been identified as being at risk of self harm,
the action taken by the prison officer on discovery of the deceased
in his cell and the deceased’s mental health and how this was
managed.
A jury was sworn in and the coroner put a
number of questions, relating to these matters to the jury, but
notably did not ask the jury to consider the actions of the prison
officer when the deceased was found hanging from the ligature.
Following the inquest, the deceased’s father
made an application for a judicial review on the basis that the
coroner had made an error in law by failing to ask the jury to
consider this matter even though there was no conclusive evidence
that the prison officer’s action (or inaction) had caused or
contributed to the death. It was argued that the coroner’s failure
to put these matters to the jury was in breach of his duty to carry
out a full and diligent investigation into the death as required by
Article 2.
In its judgment, the Court of Appeal
summarised the purpose of Article 2 in relation to deaths in
custody, as being one intended to ensure that an administrative
framework exists to protect the right to life, and to ensure that
shortcomings in the systems employed by the state are highlighted
and remedied and that officials who bore responsibility in
particular cases were identified. The ECHR was not prescriptive in
respect of how those purposes were to be achieved. In relation to
coronial law, the Court had established (in
Middleton) that the duty under the Coroner’s Act
to investigate how the deceased came by his death should be read as
meaning “by what means and in what circumstances.”
The applicant argued that the coroner was
under a duty to direct the jury to consider the relevant
circumstances of the death in order to fulfil the procedural
requirements imposed by Article 2. He argued that it did not need
to be established that the prison officer’s actions and omissions
were a probable cause of death or even a contributory
cause of death, as long as they were capable of being so.
It was held that Rule 43 of the Coroner’s
Rules exists to canvas matters which may be risks and which should
be addressed by relevant authorities in order to prevent future
deaths. Coroners have a wide scope to comment on failures in a
system in order to prevent deaths. Failure to report such matters
under Rule 43 may amount to a breach of a coroner’s duty but as
Rule 43 exists, Article 2 does not impose an additional duty on a
jury to consider possible and not probable causes of death.
Coroners have discretion as to the matters
they refer to in their Rule 43 correspondence at the conclusion of
an inquest. The coroner in this case had written an extensive Rule
43 letter to the Home Office and to the particular Young Offender’s
Institute in which the deceased had been detained at the time of
his death, but had not addressed the issue of the role played by
the prison officer after the deceased hung himself.
The Court stated that although Rule 43 does not oblige the
coroner to report all matters touched upon at an inquest
that give rise to a risk of death, circumstances, particularly in
light of the Article 2 obligation, might be such that the failure
to report on a systemic failing via a Rule 43 letter constituted a
breach of the Article 2 duty. It is likely that, as a
consequence of this judgment, coroners will be particularly
vigilant to raise all matters in their Rule 43 correspondence
revealed in evidence as matters to be addressed in order to prevent
the recurrence of similar fatalities.
It should also be noted that in Paragraph 7 of
Schedule 5 to the Coroners and Justice Act 2009 the coroner will,
in future, be under a duty to report any such matters, and
the subject of Rule 43 reports will no longer be left to his/her
discretion.
Georgina Rowley,
Associate
Weightmans LLP