Update on the Article 2 investigative duty in…

Introduction

In R. (on the application of Parkin) v HM Coroner for Inner London (East) [2024] EWHC 744 (Admin), the High Court considered the question of whether an Article 2 investigative duty arises in an inquest in circumstances where the individual concerned was living in their own home; had capacity, and exposed themselves to danger.

Factual Background

Mrs Wolff was a 74-year-old adult. She was a smoker and was diabetic. She was a hoarder, and her home was filled with detritus and debris. It was not maintained or kept hygienic. The London Fire Brigade had received multiple referrals for home safety over the years and it had tried unsuccessfully to make a visit on 8 or 9 occasions, but Mrs Wolff had either refused the visit or been uncontactable. However, a successful visit had been made in 2019 and smoke alarms were fitted. Mrs Wolff declined numerous offers of help from social services with getting her house cleared. She had been warned as to the risk of hoarding and the fire risk from smoking many times. Very tragically, she died at her home from smoke inhalation after the sofa she was sitting on had caught alight, probably due to the unsafe use or disposal of a cigarette.

Decision

Mrs Justice Collins Rice concluded that the Assistant Coroner did not have a duty under ECHR Article 2 to investigate the circumstances of Mrs Wolff’s death.

In reaching that conclusion, Mrs Justice Collins Rice cited the Supreme Court’s decision in Rabone v Pennine Care NHS Trust [2012] 2 AC 72, which concerned an NHS voluntary psychiatric inpatient, known to be suicidal, who died by suicide on a visit home.

She stated at [21]-[26] that:

“21. It is clear from Rabone in the first place that ' the existence of a 'real and immediate risk' to life is a necessary but not sufficient condition for the existence of the duty ' ([21]). This threshold test of 'real and immediate risk to life' was further considered by the Supreme Court in R (Maguire) v Blackpool and Fylde Senior Coroner [2023] 3 WLR 103 at [241]: 'A real risk is one that is objectively verified and an immediate risk is one that is present and continuing'. The risk must be a risk specifically of death, not just of harm, even of serious harm ([38]).

22. Next, to return to Rabone, the following principles (or, as Lord Dyson JSC put it, relevant factors or 'indicia') appear.

23. First, ' the operational duty will be held to exist where there has been an assumption of responsibility by the state for the individual's welfare and safety (including by the exercise of control) ' ([22]). The exercise of control is the paradigm example of the operational duty arising. Where a state body has assumed complete control, for example by detaining, imprisoning or conscripting an individual, it is 'subject to positive obligations to protect the lives of those in their care' (Mitchell v Glasgow City Council [2009] AC 874 at [66] ).

24. Second, ‘the vulnerability of the victim is a relevant consideration ' ([23]):

In circumstances of sufficient vulnerability, the ECtHR has been prepared to find a breach of the operational duty even where there has been no assumption of control by the state, such as where a local authority fails to exercise its powers to protect a child who to its knowledge is at risk of abuse…(ibid ).

The vulnerability in question must be connected to the foreseeable risk identified at the threshold stage (Morahan, [129]).

25. Third, the nature of the risk to life is relevant:

[24] A further factor is the nature of the risk. Is it an 'ordinary' risk of the kind that individuals in the relevant category should reasonably be expected to take or is it an exceptional risk? Thus in Stoyanovi v Bulgaria (Application No.42980/04) (unreported) given 9 November 2010, the ECt HR rejected an application made by the family of a soldier who died during a parachute exercise. At paras 59-61, the court drew a distinction between risks which a soldier must expect as an incident of his ordinary military duties and "'dangerous' situations of specific threat to life which arise exceptionally from risks posed by violent, unlawful acts of others or man-made or natural hazards". An operational obligation would only arise in the latter situation.

26. Lord Dyson JSC also observed that some or all of these factors may be relevant to considering whether the operational duty has arisen, but that this was an evolving jurisprudence, and the category of cases giving rise to the duty should not be regarded as closed.”

In applying these principles to the case, Mrs Justice Collins Rice noted the following key points:

There was a real and immediate risk of death and therefore the Rabone threshold test was established. However, that is a necessary but not a sufficient, step for establishing an Article 2 duty.
Mrs Wolff was not a person over whom the state exercised ‘control’. She was a private citizen who died in her own home living an independent life she had chosen for herself.
Unlike the circumstances in Rabone, the state had no verifiable power to control or detain Mrs Wolff as it had been professionally established, including relatively shortly before her death, that there were no Mental Health Act powers to do so. The relevant authorities were dependent on her consent to intervene and she was wholly resistant to what might be called de facto state control.
Whilst a multidisciplinary team had put together a plan for her welfare, that did not come close to establishing a positive operational duty. Indeed, the Judge noted at [52] that “Helping and supporting an individual, even in the discharge of legal duties, does not routinely give rise to the operational duty. Something more is needed. And it cannot just be a real and present risk to life because that is necessary but not sufficient for the duty to arise.”.
Whilst in Rabone it was said that in circumstances of sufficient vulnerability, the ECtHR has been prepared to find a breach of an operational duty even where there was no assumption of control by the state, and whilst Mrs Wolff was from time-to-time referred to as vulnerable, not every degree of vulnerability was relevant, and she was not identified as vulnerable on account of her mental health. To the contrary, she was an adult of confirmed competence and a psychiatrically sound mind. Whilst she ran many risks to her health and safety, she was fully informed as to the risks she was running and targeted help to eliminate or mitigate them had been made available to her over a sustained period of time. It was relevant that at all times, the relevant risk factors were under the control of Mrs Wolff herself; she was living in her own home; and she was positively resistant to any previous attempted State intervention (and the relevant authorities were dependent on her consent in order to intervene).

In light of all the above, the Judge concluded that the Article 2 operational duty did not arise on the facts of the case. As such, the necessary test for holding an inquest under section 5(2) was not satisfied and the decision of the original Assistant Coroner was upheld.

Comment

In this very sad case, the High Court affirmed and applied the existing law on Article 2. It is a useful case in that it demonstrates how the Courts are applying the existing case law, and in particular the principles set out in Rabone, in practice in other cases concerning deaths in the community. It is clear from the judgment that Mrs Wolff’s capacity and autonomy were key factors here, and the judgment makes clear that where such a person chooses to expose themselves to a risk of danger, the state will not be deemed to have assumed responsibility for that risk.

It’s likely that this decision will be frequently relied upon by those representing local authorities who have supported individuals in the community, because of the Judge’s remark that Article 2 does not arise in every case in which health and social care professionals draw up care plans for individuals, or where patients spend time in hospital, and that something more is needed (which cannot just be a real and present risk to life because that is only a necessary, and not sufficient, condition of the Article 2 duty arising). However, the Judge’s approach in that regard, in my view, is consistent with the existing leading case law in this area rather than representing any new limitation on the circumstances when Article 2 will arise.

The full judgment can be accessed via BAILII and Westlaw.

This article was written by Harriet Wakeman.