Article 2 in the context of lapses in care and treatment

Dove v HM Assistant Coroner for Teesside and Hartlepool & Anor [2023] EWCA Civ 289 (17 March 2023) considered the relevance of the conduct of governmental organisations when considering how an individual came by their death. However, it also serves as a timely reminder that individual errors in the provision of care and treatment generally do not trigger Article 2 inquests, the relevant tests for which were set out most notably in Rabone [2012] UKSC 2, although there is no sure guide to when the duty will be engaged and the courts are often asked to consider the relevant principles.

Facts of the case

Jodey Whiting was a 42 year old with a medical history including depression, drug dependence and emotionally unstable personality disorder and who passed away on 24 May 2017 as a result of an overdose of prescription medication. Shortly before this, on 07 February 2017, the Department for Work and Pensions had ceased payments of her Employment & Support Allowance (ESA). The decision was taken after the DWP had determined that Jodey had not shown “good cause” for failing to attend a Healthcare Personnel (“HCP”) appointment the previous day. This was despite Jodey suffering from pneumonia at the time and due consideration not being given to the mental health conditions of which the department were fully aware. At no point did the DWP look to dispute this version of events.

Inquest

The original inquest was opened on 30 March 2017 and adjourned until 24 May 2017, with the coroner stating at the outset that it was not within their remit to scrutinise the function of or the actions taken by the DWP. A statement from Joy Dove, Jodey’s mother and advocate at the inquest, read “I blame the Department for Work and Pensions for her death.” She also addressed the coroner directly about the way that Jodey was treated by the DWP, but was told that those issues fell outside of the scope of the inquest. The coroner returned a short form conclusion of Suicide.

Appeal

Following the inquest hearing, two further pieces of evidence came to light. Firstly, a report from Independent Case Examiner Ms Joanna Wallace which identified “shocking” failures within the DWP and established that the withdrawal of Jodey’s ESA “should not have happened.” Secondly, a report from Dr Trevor Turner (Consultant Psychiatrist) which read “I consider that there was likely to have been a causal link between the [Department's] failings … and [Jodey's] state of mind immediately before her death.”

Following this, Mrs Dove advanced the following arguments for a fresh inquest:

• Firstly, that a fresh Jamieson inquest was necessary in light of the further evidence relating to the cessation of Jodey’s benefits by the DWP and the likely effect on their mental health;
• Secondly, and in the alternative, the inquest should have been an Article 2 inquest on grounds that both the operational and the systems duty within Article 2 were breached;
• Thirdly, that a second inquest should take place because the further evidence served to show that the first inquest had not revealed the substantial truth about Jodey’s death; and
• Fourthly, that a different conclusion would be reached at a fresh inquest.

Each of those four arguments were rejected by the Divisional Court with the application for a fresh inquest under S.13 of the Coroners Act being accordingly dismissed. However, subsequently, the Court of Appeal were invited to consider that:

1. The Divisional Court were wrong to conclude that a fresh Jamieson Inquest (whereby Article 2 is not engaged) was not necessary or desirable in light of the fresh evidence relating to the abrupt cessation of Jodey’s benefits by the DWP and the likely effect of that on Jodey’s mental health; and
2. Secondly and alternatively, that the Divisional Court was wrong to conclude that a fresh Middleton inquest was not necessary or desirable in the light of arguable breaches of the Article 2 operational duty owed to Jodey by the DWP.

The Court of Appeal (lead by Whipple LJ giving the leading judgement) agreed with the first of those grounds that a fresh inquest was desirable, so that the coroner could make findings of fact as to whether the DWP’s actions contributed the deterioration of Jodey’s mental health. However, Whipple LJ agreed that an Article 2 inquest was not mandated as “she was not under the responsibility of the state at or prior to her death. There was no operational duty in existence.”

Conclusion

It is the response to the second of the aforementioned grounds of appeal which is most relevant to healthcare practitioners. The Divisional Court rejected the submission that the first inquest ought to have been Article 2, as the DWP had not assumed responsibility for Jodey, her vulnerabilities were not exceptional, and the risk to her life by suicide was long-standing. The Divisional Court also held that there was no arguable breach of the Article 2 systems duty because the DWP's failings were individual, not structural or systemic in nature. In those circumstances, there was no Article 2 procedural duty as per Farbey J, and per Warby LJ. The Court of Appeal was in agreement with those conclusions.

The bar for assuming responsibility for an individual’s welfare remains appropriately high, and the acts or omissions of individuals working within organisations are incapable of triggering Article 2 save for the most exceptional of cases. Despite multiple failings being admitted by the DWP, and a likely causal link being established between these failings and Jodey’s deteriorating mental health, there was no assumption of responsibility for the department to safeguard her against the risk of suicide. However, this is a matter likely to remain under review by the courts, particularly in cases where the individual involved is especially vulnerable.