In a recent decision, the High Court (Mitting J and Aitkens LJ) was asked to determine whether Article 2 ECHR obliges the State to conduct an immediate and independent inquiry into the circumstances of the death of a patient detained under the Mental Health Act 1983.
The proceedings for judicial review in R (on the application of Antoniou) v (1) Central and North West London NHS Foundation Trust and (2) The Secretary of State for Health and (3) NHS England  EWHC 3055 (Admin) were brought by Dr Antoniou, whose wife (JA) died in October 2010 whilst detained under section 3 of the Mental Health Act in the Mental Health Unit of Northwick Park Hospital. Following her death, an investigation was carried out by the hospital in accordance with the ‘Serious Untoward Incident Policy’. In the course of that investigation, statements were taken from a number of hospital staff. The SUI Panel report was eventually produced on 6 July 2011 despite the applicable policy indicating it should be produced within 90 days. In addition, there was a police investigation which culminated in a police report being produced in December 2010. This examined the events after JA’s death but not the developments beforehand.
Dr Antoniou first requested an independent review of the circumstances leading to JA’s death in April 2011. Proceedings for judicial review were issued in August 2011 but were stayed pending the outcome of an inquest. On 16 May 2012, the jury recorded a narrative verdict. They concluded that JA’s death was inadvertent following self-harming by use of a ligature. The jury further made certain criticisms of the actions taken prior to JA’s death, including a finding that not all relevant information had been passed to the nursing team.
Legal and Policy Framework
At the material time, the provisions of the Coroners and Justice Act 2009 had not come into force and the relevant legal framework was the Coroners Act 1988. Under that statutory framework, there was no statutory obligation to carry out an inquest into a death in a psychiatric custody as opposed to death in prison or other circumstances defined by section 8 (3) of the Act. Nor was there a duty, but merely a power to carry out an inquest with a jury. Further, whereas deaths in police custody or in prison trigger an investigation by the PPO or the IPPC, there is no equivalent body to investigate deaths in psychiatric custody. The DoH Guidance in force (which was replicated by the CNWL guidance) identified 3 different degrees of investigation that should occur – (1) an ‘initial management review’ An Internal Mental Health Trust investigation and (3) a Strategic Health Authority Independent investigation. The guidance stipulated that an SHA independent investigation should be undertaken in three identified circumstances:
- where a homicide has been committed by a person who is or has been under the care of specialist mental health services in the six months prior to the event;
- when it is necessary to comply with the State’s obligations under Article 2 ECHR – that obligation being triggered “Whenever the State agent is or may be responsible for a death or where the victim sustains life-threatening injuries”;
- when the SHA determines that an adverse event warrants independent investigation, for example where there have been a cluster of suicide or restraint related deaths.
In practice, SHA investigations have rarely been commissioned and typically only in circumstances or (c).
By his claim, Dr Antoniou sought to establish that the policies and procedures applied by the Defendants in respect of investigations into a death in psychiatric custody were unlawful in that they unduly confined the extent of the procedural obligation to carry out an ‘effective investigation’ pursuant to Article 2 ECHR. On the Claimant’s case, the Article 2 duty to carry out an effective investigation required the State to:
- take the initiative to carry out the investigation;
- take adequate steps to secure the evidence;
- carry out an investigation independent of the institution involved;
- carry out an investigation with diligence and promptness;
- ensure a sufficient degree of public scrutiny for it to be accountable;
- involve the next of kin effectively;
- establish the circumstances of the death/ near death.
Further, an independent investigation should be carried out immediately even though it may not be clear that the State was in breach of its Article 2 obligations and even in circumstances in which there might be an inquest.
Criticism was therefore made of the DoH, CNWL and NPSA Guidance, all of which were said to unduly circumscribe the duty of investigation as outlined by the Claimant.
The Claimant further contended that on the facts, these requirements had been breached, inter alia because the SUI investigation lacked independence and because there had been operational failures at several points in securing the evidence and failures in the process of disclosure in the inquest. It was also asserted that the investigative regime was discriminatory in that JA’s death had been subject to a different (and lesser) degree of scrutiny than that which would have been applied to other detainees in other settings and therefore this contravened the Equality Act 2010.
CNWL submitted that the requirements of an effective investigation do not extend to an immediate independent investigation – the totality of the investigations has to be examined to ascertain whether or not there has been compliance with Article 2. On the facts, there had been no breach of Article 2. As to discrimination, the Equality Act was not in force at the time of JA’s death, there had been no discrimination during her lifetime and she had none of the protected characteristics. The Secretary of Health and NHS England similarly submitted that there was no duty to carry out an independent pre-inquest investigation to comply with Article 2.
Scope of the obligation under Article 2 ECHR in a case where a patient detained under section 3 or 5 MHA has died in hospital
The Court considered the Strasbourg jurisprudence and the domestic decisions in R (Amin) v Secretary of State for the Home Department  1 AC 653, R (L) v Secretary of State for Justice  1 AC 588 and R (Smith) v Oxfordshire Assistant Deputy Coroner  1 AC 1. Amin was recognised as authority for the proposition that an inquest is the means by which under domestic law, the State’s duties under Article 2 are to be discharged but it was not accepted that it established that there must be an independent and prompt inquiry in addition to an inquest. L was held to provide useful guidance as to the constituent elements of an Article 2 compliant inquiry, but as it concerned a death in prison, it was held that the House of Lords plainly did not have the circumstances applicable in the present proceedings in mind. Whilst it was acknowledged to be the high point of the Claimant’s case, on the facts of L, it was a near miss situation and so there could have been no inquest. Smith was also rejected as authority for the proposition that there must be an immediate Article 2 compliant investigation as opposed to an enhanced or staged investigation. Accordingly, the Court found that there is no existing domestic authority requiring that in order to fulfil the State’s Article 2 obligations, there must be an independent investigation from the outset where a detained patient has died in mental health custody.
As to the submission that the law should be extended to encompass such a duty, the Court concluded that a Middleton inquest would be sufficient to discharge the State’s Article 2 procedural obligations and that on the facts of the case, there was no basis to conclude that this would be an inappropriate means of doing so. Further, whilst there were different regimes for deaths in custody, there was no requirement under the Strasbourg jurisprudence or domestic law that the obligation under Article 2 had to be discharged in the same way in the context of mental health detention.
Lawfulness of the Guidance
The Court held that given its findings as to the need for an immediate independent investigation, the claim that there had been a breach of an obligation to undertake one was bound to fail. Whilst the DoH/ CNWL and NPSA guidance could be clearer, it did not disclose an error of law.
Curing of defects
Although in view of the findings on the first issue, the question of whether a defective independent investigation could be cured by a subsequent inquest did not fall to be determined, the Court commented nonetheless that, if this type of investigation were (contrary to its primary finding) a requirement under Article 2, any defect in its conduct could not be cured. The only situation in which a ‘cure’ might be relevant is where the adequacy of the overall investigation procedure was challenged.
Breach of Article 2 on the facts?
The Court considered in some detail the various defects in the SUI investigation process identified by the Claimant. In essence, the Court concluded that regarded overall, the investigation procedure was not defective. Even though the SUI investigation was not ‘independent’, the Coroner’s inquest was. Further, the loss of evidence did not materially impede the investigation, nor did the failure to provide full disclosure which was not material to the events leading up to JA’s death. The investigation process, which took 19 months, should be regarded as prompt and JA’s family had been suitably involved. Accordingly, there had been no breach of the duty to provide an Article 2 ECHR compliant investigation.
The Court accepted that superficially it might appear that there is differential treatment within the meaning of Article 14 ECHR if the investigative obligation into suicide is more stringent in circumstances where an individual is detained in prison as opposed to mental health custody. However, that differentiation is not attributable to the fact that an individual suffers from mental health issues – it is attributable to the objectives of the detention. If the obligation is more stringent in the context of prison custody, this is due to the difference in the nature and circumstances of the place in which they are detained. However, where a prisoner is detained in the psychiatric wing of a prison hospital, the more stringent obligation continues to apply as he would still be detained for deterrent purposes.
As to the arguments under the Equality Act 2010, the Court found that the duty not to discriminate both under section 6 and the public sector equality duty, only applies to a living person and the death of JA extinguished any discrimination.
Accordingly, the proceedings for judicial review were dismissed.