Article 2 Inquests—Possibility Of An Extension Of The Operational Duty

R (on the application of Lee) v HM Assistant Coroner for the City of Sunderland [2019] EWHC 3227 (Admin)

What are the practical implications of this case?

The case of Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2, [2012] 2 All ER 381, [2012] All ER (D) 59 (Feb), is well established authority that Article 2 of the European Convention of Human Rights (ECHR) can be engaged in the context of the death of a patient who is admitted to hospital voluntarily for mental health problems, rather than being detained under the Mental Health Act 1983.

The operational duty is the positive duty imposed by ECHR, Art 2 on the state to take reasonable steps to protect the life of a specific individual where state authorities know (or ought to know) that there is a real and immediate risk to that person's life, either by suicide or violence at the hands of another.

In the case of Rabone it was held that three elements would need to be present in order for the operational duty to exist. These were:

a 'real and immediate risk' of suicide acute 'vulnerability' of the individual an 'assumption of responsibility' or degree of 'control' by the state towards that individual In Lee v HM Assistant Coroner for the City of Sunderland the court found that the coroner had not given proper consideration to all of these elements, instead focusing on the issue of 'control' and remitted the decision back to the coroner to make again.

The judge noted that, in the event that the coroner does find an operational duty exists in these circumstances (and thus that ECHR, Art 2 applies), this would be an important extension of the law beyond Rabone to include patients that have not even been admitted to hospital, but remain under the care of mental health services in the community. This would clearly have important implications for any practitioners in this area of law and would make it that much more difficult to resist the application of ECHR, Art 2 in cases where an individual known to mental health services has taken their own life in the community.

The judge also considered whether there had been any error on the part of the coroner in the application of the law with regards to the systemic duty conferred by ECHR, Art 2 (ie the duty to provide an effective regulatory framework for the protection of people's lives generally). The law with regards to this is still developing, but the judge found that the coroner had applied this correctly and there was no...