More On The Limited Reach Of Article 2 In Inquests

• Published date: 01 October 2021
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Health & Safety, Personal Injury
• Law Firm: Gatehouse Chambers
• Author: Ms Emma Zeb

If you practice extensively in inquests and in particular the more complex cases which involve the actions of state agencies who interacted with the deceased before their death, then you will be aware of the increase in arguments at PIR stage that Article 2 should be engaged. When Article 2 is engaged then the scope of the inquest will be expanded to examine 'in what circumstances' the deceased came by their death as opposed to a narrower Jamieson style inquest asking 'how' the deceased died.

In the recent case of Dove v HM Assistant Coroner for Teesside and Hartlepool [2021] EWHC 2511 (Admin), [2021] All ER (D) 45 the Divisional Court declined to find that an arguable operational duty existed pursuant to Article 2 of the ECHR in respect of the decision making of the DWP around the deceased's benefits before she died. A factor that the family argued had contributed to her death.

The deceased, Ms Whiting was a 42 year old woman with a number of vulnerabilities in respect of her physical and mental health. Prior to her death she was in receipt of a number of state benefits, including Employment Support Allowance (ESA). As is usual for the receipt of ESA, Ms Whiting was required to attend a work capability assessment. She failed to do so and on 6 February 2017 the DWP wrote to inform her that her ESA would be stopped. On 21 February 2017 Ms Whiting overdosed on prescription medication. Notes were found, indicating that she intended to take her own life.

An inquest into Ms Whiting's death returned a short form conclusion of suicide. Her family challenged the outcome on the following main grounds, seeking a fresh inquest under Section 13 of the Coroner's Act 1988:

• There was an insufficient inquiry given the failure to investigate the role of the DWP in the death.
• The was an insufficient inquiry given that Article 2 was not engaged by the Assistant Coroner who heard the inquest.
• Fresh evidence had come to light which might lead to a different conclusion at a fresh inquest. This included an investigation within the DWP which was critical of their actions.

The Divisional Court rejected the arguments made by Ms Whiting's family. Importantly, in relation to the issue of Article 2:

• The key starting point as per the case of Rabone v Pennine Care NHS Trust [2012] UKSC 2 is to consider the assumption of responsibility. Here it was held that there was no assumption of responsibility. The operational decision making of the DWP in relation to the allocation of benefit...