Article 2 inquests: protecting life in death

Michael Taylor
Solicitor, Clinical Negligence

It occurred to me the other day (in one of my brighter moments!) that death is inevitable – it is only the cause that is yet to be determined.

Unfortunately, there are many situations or circumstances in which the cause of death, or events immediately prior to it, make it difficult, and sometimes impossible, to draw simple conclusions as to the reasons a person has passed away. This is where a Coroner may step in under the Coroners and Justice Act 2009 (CJA 2009), which empowers a Coroner with a duty to investigate an unexpected death, which often culminates in an inquest.

If an individual’s passing happened to have been sudden, potentially suspicious or unnatural then an inquest may be held to attempt to ascertain the cause. Section 5(1) of the CJA 2009 sets out what it is the inquest process is trying to determine, namely:

5(1)(a) Who the deceased was;
(b) How, when and where the deceased came about his or her death

It should also be noted that in determining the above any decision or outcome must not be framed in such a way as to establish criminal or civil liability (CJA 2009 Sc10(2)(a)&(b).

There are 2 different types of inquest:

1. A traditional, or “Jamieson Inquest” as it is also known is not intended to establish blame but to provide clarity as to how the deceased came to their end.
2. A Middleton or Article 2 inquest, which takes on a more enhanced form and is held where there is the potential that the State or ‘its agents’ have ‘failed to protect the deceased against a human threat or other risk’ or where there has been a death in custody.

What is an Article 2 Inquest?
It was held by the Court of Appeal that, as a result of the European Convention of Human Rights (ECHR) being enacted via the Human Right Act 1998, a duty was imposed on the coroners’ courts to consider the rights set out in the ECHR and, more specifically, under Article 2(2) wherein the State has an obligation to take appropriate steps to safeguard the life of individuals. This can include protecting an individual from themselves and has a strong focus on people in vulnerable positions, such as those in custody or persons with mental disabilities.

As a result of the responsibilities placed upon the State, the definition of which can be extended to include authorities such as local authorities and health trusts, an Article 2 inquest involves not just looking at the questions set out above but also whether there was a failure on the part of the State under their Article 2 obligations that led to the death and could therefore return a finding of ‘system neglect’ at inquest.

When is an Inquest an Article 2 Inquest
The most straightforward instances of Article 2 inquests are where an individual who is in the custody of, and therefore under the care or guardianship of the State, has died. The most obvious situations would be where someone was detained under the Mental Health Act or where they are a prisoner serving time in a State prison. It should be noted that the definition of ‘being under State care’ was extended by the Supreme Court to include not just those detained under the Mental Health Act, but also voluntary in-patients.

For Article 2 to be engaged, in terms of a positive obligation on the State to protect an individual, it is necessary to show that the State knew, or ought to have known at the time, of a real and immediate risk to the life of the individual and failed to take whatever action they could – being both within their powers and considered reasonable, to prevent that risk.

Conclusions of an Article 2 Inquest
Due to the expanded scope of an Article 2 inquest, which looks not just at the cause of an individual’s untimely passing but also the potential involvement of the State, conclusions to Article 2 inquests can go further than is often the case with traditional inquests.

One of the conclusions available following an Article 2 inquest that is not available at a ‘traditional’ inquest is that the investigating Coroner can issue what is known as a Regulation 28 Report. This report outlines the failings and actions to be taken to remedy those failings as identified during the inquest and is provided to the State or relevant authority acting under the State. The objective of this exercise being to prevent future deaths from occurring in similar circumstances to those that gave rise to the need for the Article 2 inquest in the first place.

Article 2 provides the Coroner’s Court with a bigger remit and extra scope to investigate in circumstances where an individual may have been relying on protection from the State. The dead cannot tell their story and it is important that a system exists to give life to their narrative, whatever their circumstances.

If you have any questions, or if you think you have a claim, please do not hesitate to get in touch with Michael.