The right to life and the requirement to properly investigate death

Antoniou, R (on the application of) v Central and North West London NHS Foundation Trust & Ors [2013] EWHC 3055 (Admin) (10 October 2013)

Summary

This decision of the England and Wales High Court (Administrative Court) considered the scope of a State's procedural obligation to investigate a detained patient’s death, derived from article 2 (right to life) of the European Convention for the Protection of Rights and Fundamental Freedoms.

The Court held that an inquest will generally fulfil a State's article 2 procedural obligations in circumstances where a patient detained in a psychiatric hospital commits suicide whilst in the care of the hospital.

Facts

The claimant's wife, Mrs Jane Antoniou (“JA”), committed suicide on the morning of 23 October 2010. At the time, she was detained as a patient in the Mental Health Unit of Northwick Park Hospital under section 3 of the Mental Health Act 1983. The hospital is part of the first defendant – Central and North West London NHS Foundation Trust (“CNWL”).

Almost immediately after JA’s death, the hospital made arrangements to secure her medical records and notify the police. On the same day, the police commenced an investigation, notified the Coroner’s Office, and informed the claimant.

On 25 October 2010, in accordance with CNWL’s Serious Untoward Incidents Policy (“SUI policy”), an initial management review was completed by the Ward Manager.

On 1 November 2010, an SUI panel was appointed by CNWL under its SUI policy. The panel conducted interviews of relevant staff members and commissioned expert reports from November 2010–January 2011. 

On 26 January 2011, the claimant met members of the panel and was told that the panel's report would not be provided to him but would be explained orally. He was not provided with the terms of reference for the panel.  On 28 April 2011, the claimant wrote to CNWL and requested that an independent review be conducted. This was not done.

The panel produced their report on 6 July 2011. 

On 16 May 2012 an inquest was completed. The inquest consisted of seven pre-inquest reviews and was conducted with a jury, who delivered a narrative verdict.

The claimant sought a declaration that the investigation into the death of JA did not comply with article 2 of the Convention for a number of reasons, including that CNWL failed to conduct an independent investigation pre-inquest and failed to adequately involve the claimant in the investigation. The claimant also sought damages against CNWL and the second defendant, the Secretary of State for Health.

The claimant argued, among other things, that article 2 requires a state to carry out an immediate and independent investigation, prior to an inquest. He also claimed that the Secretary had unlawfully discriminated against JA by treating her case differently to cases of detainees in other settings.

Legal framework

Article 2 of the Convention states:

Right to Life

1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this is the penalty prescribed by law.

In 2004 the House of Lords in R (Middleton) v West Somerset Coroner [2004] 2 AC 182 ruled that this right requires an effective, independent public investigation into a death if it appears that the State was possibly involved in an infringement of the right to life.

Decision

The Court dismissed the claims.

The Court accepted that article 2 imposes both “substantive” and “procedural” obligations on a State. In this case, the substantive obligations required the State to take reasonable care to ensure that patients detained in a psychiatric hospital did not commit suicide by putting in place systemic precautions. If those precautions fail, as they did in this case, a State’s article 2 procedural obligations will be triggered. These procedural obligations were identified by Lord Phillips in R(L) v Secretary of State for Justice [2009] 1 AC 588 as requiring an investigation with the following characteristics:

• the process is to be initiated by the state itself;
• it is to be prompt and carried out with reasonable expedition;
• it needs to be effective;
• it must be conducted by a person who is independent of those implicated in the events being investigated;
• there must be a sufficient element of public scrutiny of the investigation or its results; and
• the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard their legitimate interests.

The Court found that an inquest will generally fulfil a State’s article 2 procedural obligations as it meets the minimum standards set out above. The Court found that there were no particular characteristics in the present case that would mean an inquest was inappropriate.

The Court accepted that the initial panel investigation was not hierarchically or practically independent. However, the Court found that this step was only a part of the “staged investigation” that led to the inquest. The inquest itself was open to public scrutiny, it was conducted by an independent judicial officer, and the inquest investigation was not limited to the prior internal investigation.

The Court also concluded that there was no unlawful discrimination against JA or the claimant by any of the defendants. It was held that if the State’s investigative obligation into a suicide is more stringent for a prisoner than a patient detained in a hospital, this is because of the different circumstances of the detention rather than because the psychiatric patient suffers from a disability.

Commentary

Section 9 of the Victorian Charter states that “every person has the right to life and has the right not to be arbitrarily deprived of life”. Public authorities, including public health bodies, must not act in a way that is incompatible with a human right (section 38(1)). This case could therefore provide guidance as to the scope of section 9 of the Charter.

We note, however, that in the recent case of Nassir Bare v Rai Small (and ors) [2013] VSC 129 the Victorian Supreme Court confirmed that under Victorian law there is no implied right to have complaints of serious assault allegedly committed by Victoria Police officers effectively investigated by a body that is independent of Victoria Police. The Bare decision suggests that Victorian Courts may depart from international jurisprudence recognising the procedural, investigative component of the substantive right to life.

Mr Bare has appealed to the Victorian Supreme Court of Appeal. A case note on the Supreme Court’s decision can be found here.

The full decision is available at: http://www.bailii.org/ew/cases/EWHC/Admin/2013/3055.html

Laura Crick is a paralegal and Tamsin Webster is a lawyer at Maddocks.