The state’s obligation to conduct an effective and proactive investigation into a death arises where the circumstances give rise to the possibility of a breach of the positive duty to protect life. This duty may extend to involving the next of kin in the proceedings to the extent necessary to safeguard their (and the public’s) legitimate interests with necessary consequences for the provision of public funding for legal assistance.
The nub of the issue for public bodies
This case looked at the vexed question as to when an inquest should extend its inquiry to include a human rights element under Article 2 (right to life) and when the next of kin should have public funding for legal help.
It is an important case which could well have consequences in the way the NHS approaches inquests. It is often the case that the NHS has the support of lawyers in difficult and complex inquests and this case makes it even more likely. 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 there will be a longer wait before matters reach a hearing and hearings themselves are likely to become longer and more difficult.
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 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) does not arise in all cases where the death occurred when the deceased was in the care of the state but only in the much narrower range of cases 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 of the 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 a 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.
Dante Kamara was a 10-year-old boy who suffered with asthma. His mother took him to the doctor and asked for a nebuliser but the nurse at the surgery refused saying he did not need it. He subsequently suffered an asthma attack and his mother called for an ambulance. There was delay in the ambulance attending and it was suggested that the paramedic was negligent in his care of Dante. The boy was taken to hospital and died shortly afterwards.
The matter was complicated by the fact there appeared to be a history of non-compliance by the mother and she was later arrested on suspicion of manslaughter, but no charges were brought. There was concern the mother’s conduct could be brought into serious question at the inquest and without help she could incriminate herself.
Ms Humberstone’s solicitors, with the support of the coroner, applied for and were refused funding for legal representation. The coroner subsequently wrote to the Commission drawing attention to the fact that other interested parties would be legally represented and the difficulties he would face in conducting the inquest. It was clear he felt medical professionals would unite in blaming Mrs Humberstone. She would have no one to advise her regarding self-incrimination.
The Commission argued that the application was not based on the existence of a wider public interest and that even if the inquest would be properly said to entail a possible breach of the state’s Article 2 obligations the circumstances were not so exceptional to require the family to be represented.
The central question
The judge at first instance took a very broad approach to the application of Article 2 and said the obligation under Article 2 arose simply because the deceased was in hospital at the time of his death. There was a possibility of state agents being responsible for his death, even though he recognised there was no evidence of wrong doing by the healthcare authorities and professionals which could amount to more than simple negligence.
Public funding for lawyers should be provided.
This would have extended the duty significantly and put real pressure on the NHS.
Whilst the Court of Appeal agreed public funding should be provided to 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 and police inquires and the like.
For the NHS this is a welcome statement of the law. But, in this case, the allegation of delay in despatching an ambulance 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. It was noted that Ms Humberstone had very limited capacity to understand and take part in the proceedings without help.
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.