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Published 31 March 2023
The Court of Appeal and High Court have been busy with coronial law during the start of 2023. In this briefing, we explain three court rulings that you need to know about;
Meanwhile, in Makki v HM Senior Coroner for South Manchester, the High Court ordered a fresh inquest after the coroner did not make a finding about unlawful killing and self-defence, instead concluding that “the precise circumstances … cannot on the balance of probabilities be ascertained”.
We explore how this caselaw might apply to health and social care cases.
Ms Whiting took her own life aged 42. She had been in receipt of welfare benefits from the Department of Work and Pensions (DWP), which had been stopped in the weeks prior to her death.
At inquest, the coroner’s position was that decisions made by the DWP about Ms Whiting’s benefits fell outside the scope of the inquest and a short form conclusion of ‘suicide’ was given.
Following the inquest, the family obtained two fresh pieces of evidence; firstly, an Independent Case Examiner report which identified numerous failings in relation to the decision by the DWP (which the DWP accepted). Secondly, a report from an independent psychiatrist who concluded that there was a causal link between the DWP’s failings and Ms Whiting’s state of mind immediately before her death. In light of this new evidence, the family applied for a fresh inquest.
However, the High Court refused to order a fresh inquest. The family appealed that decision to the Court of Appeal.
The Court of Appeal found that the High Court had been wrong to try and draw a sharp distinction between Ms Whiting’s mental state prior to death and the death itself, because the suicide was “the end point to which her mental health problems brought her”. It was also wrong to have approached causation on the basis of whether the death would have occurred ‘but for’ the stopping of benefits. The Court restated that the test for causation in inquests is a broader concept, which encompasses acts or omissions which more than minimally, negligibly or trivially contributed to the death. Hence, in cases of suicide, it is open to a coroner to consider the extent to which an act or omission contributed to the deterioration in the person’s mental health which, in turn, led them to take their own life.
In the view of the Court of Appeal judges, the new expert psychiatric evidence about the impact of the DWP’s decision to stop benefits was well within the scope of this non-Article 2 inquest. It was deemed relevant to the issue of intention for suicide and could also assist the coroner with formulating a narrative conclusion to reflect the anxiety and distress suffered before taking her own life.
The Court ruled that it was desirable in the interests of justice that there should be a fresh inquest in this case, because the extent to which the DWP’s failures contributed to the deterioration in mental health was a matter of real significance to her family and, if the death was connected with the abrupt cessation of benefits, the public had a legitimate interest in knowing about that too.
In 1991 a woman with a diagnosis of schizophrenia took her own life on a railway, after leaving a note for her family. At that time, a ‘verdict of suicide’ could only be reached if the conclusion was found to be proven ‘beyond reasonable doubt’ (i.e. to the criminal standard of proof). The jury at the 1992 inquest returned an ‘open’ verdict.
Thirty years on and with the threshold for a ‘suicide’ conclusion now lowered to the civil standard of proof (‘more likely than not’) - the deceased’s brother anticipated that a fresh inquest would result in a ‘suicide’ conclusion, and he felt there was important new information about why she took her own life, which had not been explored at the original inquest. The fresh evidence he relied on referred to the deceased’s relationship with a healthcare worker at the psychiatric hospital and a pregnancy termination. Whilst the deceased’s mother had known this information at the time of the original inquest, she had apparently not raised this with the coroner. There had subsequently been an investigation into the hospital which found a failure to prevent an unprofessional culture towards patients. In addition, the healthcare worker has been investigated by the police for an offence under the Mental Health Act (although no prosecution was pursued).
The brother applied for a fresh inquest.
The High Court considered the test for a fresh inquest, which is whether this is ‘necessary or desirable in the interests of justice’, with the emergence of fresh evidence as to how the person died potentially indicating that the first inquest was insufficient. The High Court emphasised that this has to be cogent evidence (such as the expert psychiatric evidence relevant to causation in the Dove case, above). In this case the Court determined that the family’s opinions about the impact of the relationship and termination of pregnancy on the deceased’s state of mind was pure speculation. The deceased had died more than three years after the termination and there was no evidence as to how the events had affected her on the day of her death. In this case, the absence of cogent evidence, plus the 30 years that had elapsed since the death, meant that a fresh inquest would not be in the interests of justice and so the brother’s application was refused.
It is possible that the Dove case will be misinterpreted, with submissions being made that a coroner must now explore the reasons why a person has taken their own life. However, if that was accurate, it would widen the scope of inquests immeasurably and would prevent the proper functioning of the inquest system.
In our view, Dove is limited by the very specific facts; there was new evidence of accepted failures by the State (the DWP) about a significant decision (to stop paying benefits) and there was a new expert report which provided the potential basis for a finding of causation.
In terms of mental health care provided by (or on behalf of) the State, it is possible to see how a Serious Incident Investigation report by the provider of psychiatric care may now be argued to provide a similar platform for ‘accepted failures’. For healthcare providers, particularly of mental health services, it will be important to identify and differentiate between failures in relation to side-issues, or where an improvement could be made for the future (so that the SI report is not misinterpreted to be ‘relevant accepted failures’ which are then determined by an expert to be causative of suicide).
In relation to Bell; when the standard of proof for a conclusion of suicide was lowered, we wondered whether there might be a surge in applications for fresh inquests, where under the ‘old’ law, the evidence had not met the threshold for a conclusion of suicide, but generally that hasn’t been the case. In some situations, while the inquest conclusion said ‘open’, families held their own belief that it was in fact suicide, using their own definition. Bell demonstrates that for a fresh inquest to be directed, the ‘new evidence’ will need to be logical and convincing, and speculation as to the impact on the deceased’s decision will not be enough.
Yousef Makki died, aged 17, from a single stab wound to the chest. Joshua Molar was prosecuted for the death, but was acquitted following a criminal trial; he claimed he had been acting in self-defence and that the stabbing was accidental. At the inquest which followed, the coroner heard 5 days of evidence about the events leading up to the stabbing.
The coroner did not feel there was sufficient evidence to support any of the available short-form conclusions, for example unlawful killing, self-defence or accidental death, and instead gave a narrative conclusion that Yousef died as a result of “complications from a stab wound the precise circumstances of which cannot on the balance of probabilities be ascertained”. Yousef’s family challenged the outcome of the inquest arguing that the coroner had failed to properly consider all the evidence on the central issue of whether or not the killing was unlawful.
The High Court agreed with Yousef’s family that a fresh inquest should be held with a different coroner. The High Court found that the coroner had not done enough to analyse the precise sequence of events despite a lengthy discussion of the evidence, and did not explain what conclusions she drew from her findings of fact (including in relation to a key issue of reliability of a witness).
The High Court highlighted the Chief Coroner’s guidance which discourages open conclusions except as a ‘last resort’ and said it was clearly in the public interest for the coroner to strive to reach a conclusion. If, despite this, the coroner is still left profoundly unsure, they need to spell out why that is.
This case may have an impact in complex medical cases, where a large volume of evidence may be heard about alleged failures in care. Reasonably often, coroners question the witnesses at length, and say in their findings, or on the ‘Record of Inquest’, something along the lines of ‘it is not possible to know whether this contributed to the death’, or ‘the evidence doesn’t reveal whether or not this contributed to the death’. In some cases that may still be appropriate, whilst in others that is unsatisfactory for all of those involved. However, the Makki case may be used to encourage coroners to make clear findings on key issues, where they have explored all of the relevant evidence.
Our large national team of inquest 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 hospital deaths to very complex Article 2/jury inquest cases involving multiple parties and deaths in state detention.
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