These were the questions faced by the Court of Appeal in the case of R (on the application of Claire Humberstone) (claimant) v Legal Services Commission (defendant) & HM Coroner or South Yorkshire (West) (interested party).

It is an important case which could well have consequences for the way the NHS approaches inquests. The NHS often has the support of lawyers in difficult and complex inquests and this case makes it even more likely. As a result of this case there are likely to be many more applications for public funding from solicitors assisting families in the future and coroners may feel under more pressure to support such requests. As a consequence it is likely that the NHS will wish to be represented at more inquests than previously and it is likely that there will be a longer wait before matters reach a hearing which themselves are likely to become longer and more difficult.

In its judgment the Court of Appeal made two important points:  

  • the next of kin (in this case) should receive public funding to permit her to have lawyers to assist her at an inquest; and
  • the state’s obligation to conduct an effective investigation into a death (and hence the possible requirement to provide legal assistance) arises where it is arguable the state has breached its substantive obligations under Article 2 (right to life).  

The state’s obligation to conduct an effective and proactive investigation into a death arises where the circumstances gave rise to the possibility of a breach of the state’s positive duty to protect life. This duty extends to involving the next of kin in the proceedings to the extent necessary to safeguard their legitimate interests.

The legal background

Section 6 Access to Justice Act 1999 empowers the Legal Services Commission to fund legal services subject to certain restrictions. Normally, funding cannot be provided for representation at coroner’s inquests but there is discretion. Legal services may be publically funded where the Commission is satisfied that funded representation is necessary to assist the coroner to investigate the case and establish the facts.

Guidance from the Lord Chancellor states that funding will only be granted where there is a significant public interest in the applicant being legally represented or where funded representation is likely to be necessary to enable the coroner to carry out an effective investigation in to the death as required by Article 2. Such necessity is considered to arise only in exceptional cases.

The decision

Whilst the Court of Appeal agreed public funding should be approved for the next of kin in this case (based largely on her circumstances), it did not accept that the Article 2 duties arose in all cases where someone was in the care of the state, such as when someone is in hospital. The obligation to conduct an effective investigation into a death only arose where there was a real issue as to whether the state had breached its obligation to protect life.

There are three parts to the NHS’ duty under Article 2:  

  • to protect life;
  • to establish a judicial system for the investigation of deaths; and
  • to proactively conduct a thorough and effective investigation where there is evidence that a possible breach lead to the death.  

In cases where there is evidence of possible systemic failings then the state’s obligation under Article 2 would be engaged to initiate an effective and independent investigation.  

When a death in hospital raises simple carelessness or medical negligence, the obligation extends only to the establishment of an effective judicial system for investigating the cause of death and does not give rise to the “duty of enhanced investigation”. It is established that this “lesser” duty may be satisfied by use of internal investigations, clinical negligence claims, police inquires and the like.

For the NHS this is a welcome statement of the law. In this case, there were factors which raised systemic issues meaning the duty of enhanced investigation was engaged and hence public funding should be provided to assist the family and was regarded as necessary for the effective conduct of the inquest, including enabling the family member to play an effective part in the proceedings.  

More public funding in future?

The Court of Appeal made some additional important comments. They were critical of the guidance which said public funding should only be made in exceptional circumstances because:  

  • it focussed on the needs of the coroner not the family;
  • it should not be necessary for the case to be exceptional in order to attract representation; and
  • there seemed to be a presumption against representation and an overlooking of the right of family members to question witnesses.  

The court felt that the Legal Services Commission seemed to make an assumption against funding which was considered inappropriate. The court emphasised the need for the family to play an effective part in such investigations.

The court observed the duty to provide representation in Article 2 cases extended to all cases where representation was likely to be necessary to enable the next of kin to play an effective part in proceedings. In many cases family members will need funded representation to effectively participate in an inquest. “Exceptionality” should not be the key criteria to adopt in deciding the question of public funding.