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Extension of the Article 2 ECHR boundaries?

Alexandra Johnstone reports on a recent decision which may have extended the scope of Article 2 of the European Convention on Human Rights.

Article 2 of the European Convention on Human Rights (‘ECHR’), as enacted in the Human Rights Act 1998, protects the right to life. It has been interpreted as having implications for the way an inquest is conducted, if it is held to apply to the circumstances of the case.

In Rabone & Anor v Pennine Care NHS Trust the Supreme Court extended the remit of Article 2 to include situations where a mental health patient was not detained under the Mental Health Act, but was a voluntary in-patient, at the time of the patient’s death.  In that case the patient had been assessed as posing a high risk to herself; she took her life when on leave from the hospital. The recent case of R (Lee) v HM Assistant Coroner Sunderland gives rise to a situation where the boundaries of the current law could be further extended, applying Article 2 to situations where a mental health patient was neither admitted to nor detained in hospital, but instead was receiving treatment in the community.


The Applicant’s daughter, Melissa, suffered from emotionally unstable personality disorder. She had taken several overdoses and had been admitted to hospital on voluntary and compulsory bases on several occasions. At the time of her death Melissa’s disorder was being treated by way of community care; she was living in the community and was receiving care via a structured programme.

Melissa attended A&E twice in the week of her death. On the first occasion, she was deemed to be at moderate risk of self-harm which did not meet the threshold for a compulsory readmission to hospital. The second time, the day before her death, she attended as a result of an overdose. Melissa asked to be discharged home and her request was granted. The following day Melissa was found dead as a result of a drug overdose.

Systemic failures

The systemic duty imposed on the State by Article 2 is the duty to provide an effective regulatory framework for the protection of people’s lives. If it could have been found that there were systemic failures in Melissa’s care, i.e. the structured community care programme was insufficient for her needs, then Article 2 would become engaged. However, no evidence was provided by the family at the inquest to indicate any systemic failures and consequently the Coroner was not persuaded that there were any such failings. The Coroner did state that she would not close this off and would be willing to reconsider her position on Article 2 should any evidence come forth during the course of the Inquest.

Operational failures

The Article 2 operational duty is the positive duty on the State (including organs of the State such as NHS bodies) to take reasonable steps to protect life. This was and remains an issue of great complexity and is highly dependent on the facts of each case. As with systemic failures, if it had been found that operational failures were present in this case, Article 2 would have been engaged in the Inquest into Melissa’s death.

In the case of Rabone it was found that three elements would trigger the engagement of the operational duty to protect the life of an individual. These were:

  • where an individual was under the control of the State, such as being detained under the Mental Health Act, there was a ‘real and immediate risk’ to life;
  • in circumstances where a person was not detained but there was acute ‘vulnerability’ of the individual; and
  • an ‘assumption of responsibility’ or degree of ‘control’ by the State towards that individual

The Coroner did not find that an operational duty arose in this case stating that the Trust had not assumed control or responsibility for Melissa due to the fact that she was receiving care in the community.

Judicial review

The decision of the Coroner was challenged in the High Court by Melissa’s mother on grounds that she had failed to give proper consideration to Melissa’s vulnerability, the level of risk and an assumption of responsibility by the Trust. Melissa’s mother submitted that it gave rise to the application of the operational duty.

The Coroner in Lee accepted the Rabone threefold test as good law. However, the High Court took the view that in ruling that the operational duty in this case did not apply, the Coroner was too heavily focussed on the issue of ‘control’ when considering the issue of assumption of responsibility, omitting to give sufficient consideration to the case law dealing with issues of ‘risk’ and ‘vulnerability’. As a result, the case has been remitted back to the Coroner for reconsideration. It is however important to note that the court was satisfied that the Coroner had not erred in her application of the law in relation to systemic duty regarding which it was held there was no arguable case.

Going forward

Rabone remains the best authority in determining the application of Article 2 in the context of an Inquest. However, the approach in the Lee case may cause more families to seek to persuade Coroners to extend Rabone to include a wider range of patients who had been receiving care in the community at the time of their death. As such this may have implications for Inquests in the healthcare sector.

For guidance on Aritcle 2 inquests, contact our inquest solicitors.

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