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Article 2 inquests: Admitted failings that are non-causative should not form part of the Coroner’s record of inquest

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By Gill Weatherill, Corrine Slingo and Belinda Dix


Published 24 April 2020


The High Court has dismissed an application for judicial review of a Coroner’s decision not to include admitted failings in an Article 2 inquest conclusion, where those failings were not causative of death, in R (Carole Smith) v HM Assistant Coroner for North West Wales [2020] EWHC 781 (Admin)


Facts of the case

Leah Smith died after hanging herself at home. In the five weeks before her death she had a number of appointments with mental health professionals. She had taken an overdose 10 days before her death and admitted to hospital. She was discharged two days later with an increase in her prescription of risperidone and a referral to the home treatment team. She only had one face to face consultation with a psychiatrist, 8 days after her overdose.

A Serious Incident Review identified a number of care and service delivery problems. The root cause was found to be inadequate medical cover for home treatment team patients. The local health board had accepted the findings of the review.

The Coroner found Article 2 was engaged and instructed an independent forensic psychiatrist whose report concluded that “on the balance of probabilities, [Leah’s] death… was not only predictable but was entirely preventable.” It emerged at the inquest that in arriving at this conclusion the expert based this in part on statistics and an element of hindsight bias.

Following what the court considered was an Article 2 compliant inquest, the coroner in determining the circumstances as to how Leah came by her death, concluded in Record of Inquest that Leah “…had a short history of mental health issues with an attempted overdose a week prior to her death. She was receiving antipsychotic medication and was under the care of the Mental Health Services at the time of her death.

The Coroner concluded that the act of hanging caused her death.

The family challenged the conclusions and alleged that the Coroner had erred in law as to the threshold and standard of proof for causation, the failure to accept the evidence of the expert and the failure to make a finding of neglect was irrational and that the Record of Inquest was not Article 2 compliant. They sought a replacement of all or part of sections 3 and/or 4 of the Record of Inquest with a narrative that referred to the failings in care provided to Leah.

The Court concluded that the Coroner’s decision to not accept the expert’s evidence about causation was not irrational; on the contrary that the conclusion reached was “rational and securely based on the whole of her careful evidential enquiry.”

The Court further concluded that the Coroner’s decision and the Record of Inquest were Article 2 compliant. It was concluded that because the Coroner delivered her reasons for her conclusions in public, then the argument that more of what appeared in the reasons should have been repeated in Record of Inquest was “an argument of form over substance” and would be rejected on that ground alone. The Court further commented that reflecting the decision in Middleton “any narrative verdict is still expected to summarise factual conclusions briefly” and that what Middleton envisages is “conclusions of fact as opposed to expressions of opinion”. The Court concluded that it was correct for the non-causative failings to be stated in the Coroner’s reasons rather than in the conclusions on the Record of Inquest.


Key Points and the Practical Impact

• This decision reminds us that the inquest is an inquisitorial process and it is clear that the Coroner is not bound to accept expert evidence.
• The Coroner is entitled to take into account (and even prefer) other evidence when considering whether to accept the conclusions of an expert despite whether any Interested Persons have accepted the conclusions of the expert. It is therefore important that if clinicians were involved in the treatment of the deceased and have a clear opinion on what caused the death that this is fully explored prior to the inquest hearing because if they are persuasive in the inquest then their evidence may be preferred to that of an independent expert.
• The High Court reiterated the test as set out in Tainton, that in establishing causation, the conduct must have more than minimally, negligibly or trivially contributed to the death on the balance of probabilities.
• When using statistics they cannot be relied upon alone to establish causation of death and the Court must take into account the individual circumstances of the deceased, as confirmed in Chidlow. When experts are instructed this should be brought to their attention so that their conclusions on causation are tailored to the facts of the case.
• There now appears to be a distinction between Article 2 Inquests held with and without a jury. Where the Coroner sits alone without a jury, if the Coroner gives their reasons for their conclusions in open court then these reasons, even if these include non-causative failings that have been accepted by an Interested Party, do not have to appear on the Record Of Inquest.
• In contrast with jury inquests, where the reasons of the jury for coming to a conclusion are not expressed in open court (as in the case of Tainton), the High Court found that the conclusion in the Record Of Inquest would be “materially incomplete and verge on misleading by omission” if admitted non-causative failings were not included.
• It is possible that in the future Coroners in Article 2 inquests will more often record brief factual conclusions on the Record Of Inquest having prior to this in open court expressed their reasons for coming to their conclusions.
• This is a broadly helpful decision to institutional clients and may halt the direction of travel that some coroners were taking in inquests where organisations had undertaken investigations and identified failings of simply adopting those failings as part of the record of inquest and without conducting a proper analysis of the failings themselves.


How can we help?

Our large national team of healthcare regulatory lawyers have a wealth of experience in supporting providers and individuals across the health and social care sector through the inquest process - from relatively straightforward deaths to complex Article 2/jury inquest cases involving multiple parties and deaths in state detention.

The support we can provide includes:

• Initial scoping to explore likely outcomes, level of support needed and next steps;
• Attendance at pre-inquest review hearings, which may cover matters such as Article 2/inquest scope; juries and expert evidence;
• Assisting with witness preparation, both at operational level and at strategic level to address Prevention of Future Deaths Report risks;
• Representation at final inquest hearings, including witness support throughout.

We can also provide bespoke training on all aspects of inquests, including updates on the latest legal developments.