The death of a loved one is probably the most traumatic, harrowing experience any human being will experience in their lifetime. Not only is there a period of unimaginable grief, suffering and uncontrollable feelings of sadness and loss to go through, but in addition there are a wealth of practicalities that have to be dealt with - a funeral to be arranged, finances to be sorted out, fellow grieving relatives who need supporting and potentially, sales of property and effects to be dealt with.On top of that, depending on the circumstances in which the deceased passed away, there may also be the need for the bereaved to attend a Coroner's Inquest into the death of their loved one.In our article, 'What Happens at an Inquest?', we attempted to answer a number of questions that we are often asked concerning the nature of an Inquest: when one is needed, what happens at the Inquest and what will be required of any family members should they be required to attend the Coroner's court as a witness.As that article answers many of the basic questions that might be raised by the deceased's relatives about the Inquest procedure, it is sufficient to re-state here, that an Inquest will be called when death occurs in any of the following circumstances:
- The cause of death is unknown
- In the case of an unnatural or violent death
- Where it has not been possible to identify the deceased person
- Death took place in custody i.e. a prisoner being held in jail
- There is no medical certificate
The purpose of the Inquest is to find answers as to:
- Who the deceased person was
- When they died
- Where they died
- How the deceased died
This article focuses on the type of Inquest that is known as an 'enhanced Inquest'. This form of Inquest is more formally known as an Article 2 Inquest.Article 2 InquestsArticle 2 of the European Convention on Human Rights provides that:
- Everyone's right to life shall be protected by law.
The Article further provides that every person has a right:
- Not to be unlawfully killed by the state
- For the state's systems to be designed so that they protect life, including through the criminal law
- For the state to investigate suspicious deaths
- In certain circumstances to require the state to take reasonable steps to prevent the loss of life
This can be further described as meaning that member states have the following duties:
- A negative duty to refrain from taking life
- A positive duty to take the appropriate steps to safeguard a person's life
'For the state to investigate a person's death'
This duty is reflected in the implementation of the Article 2 Inquest process, which carries an enhanced duty to carry out a:'thorough, independent and effective investigation into a death.'The Article 2 Inquest process will automatically be initiated in the case of a death in state custody.
Death in state custody
If someone dies in police custody, in prison or for further example in an immigration centre, they will be considered to have died whilst in state custody and as such an enhanced Inquest under Article 2 will be required to investigate the death.
Death in an NHS Hospital
What about someone who dies in an NHS (state) hospital as a result of medical negligence?Deaths as a result of medical negligence in a state hospital, do not automatically trigger the Article 2 process. Certainly the 'negative duty' to refrain from taking life, is not applicable in the case of a death resulting from medical negligence.However, the 'positive duty' imposes the following obligations:
- 'To provide an effective regulatory framework for the protection of people's lives generally' - in a healthcare setting this requires suitable systems of working to be in place. Hospitals are expected to possess and maintain high professional standards. This extends to ensuring that properly qualified staff are employed and that they carry out their duties competently, at all times.
- To take reasonable steps to protect the life of a specific individual where state authorities know that there is a risk to that person's life either as a result of the person committing suicide or where that person may be at risk of violent death (such as may be the case of a patient in a specialist mental health clinic or hospital).
How does an Article 2 Inquest differ from a non-Article 2 Inquest?
All Inquests whether they are Article 2 or non-Article 2 Inquests are required to be 'effective', investigations. This means that in all cases, the Coroner must give proper consideration to the circumstances of that death. All Inquests therefore need to be sufficiently thorough.However, due to the particular circumstances of a death where it is deemed that an Article 2 Inquest is required, an enhanced level of scrutiny has to be applied.As a result, Article 2 Inquests are different from non- Article 2 Inquests in the following ways:
- They involve a detailed and transparent investigation, with the bereaved family playing a more prominent part during an Article 2 Inquest.
- They are likely to involve a Jury.
- They are likely to last longer than non-Article 2 Inquests.
- Whilst the Coroner's decision (known as a conclusion) in a non-Article 2 Inquest is in short form i.e. a brief decision is given, the Article 2 Inquest may conclude with a 'narrative conclusion' given by the Jury. This is often a much-expanded conclusion compared to the short form type that is given in a non-article 2 Inquest.
- If evidence is revealed during the course of the Inquest that gives rise to 'a concern that circumstances creating a risk of other deaths will occur, or continue to exist in the future,' then if the Coroner deems it necessary for action to be taken, in accordance with Paragraph 7 of Schedule 5 of the Coroner and Justice Act 2009, the Coroner is under a duty to issue a Coroner's Regulation 28 Report to the body or organisation whose failing have been criticised in the Jury's conclusion.
- The Regulation 28 Report outlines the Coroner's concerns and contains a request that action be taken. The body to whom the report is addressed is under a duty to provide a response detailing the actions that will be taken to reassure the Coroner that all necessary steps will be taken to prevent future deaths happening in the circumstances that gave rise to the need for the current Article 2 Inquest.
Healys solicitors were involved in a case where they acted on behalf of the family of Mrs Joan Blaber, a vulnerable elderly patient, whose death occurred after she had been admitted to Royal Sussex County Hospital in 2017. Healys Medical Negligence claims partner, Jonathan Austen-Jones had conduct of the case.Mrs Blaber suffered a minor stroke which led to her being admitted to the hospital. At the time of the incident that led to her death, she was making good progress in her recovery from the stroke. Indeed, she was due to be discharged within a matter of days, when she ingested floor cleaner which had somehow been put into a water jug that had been left on her bedside cabinet. The water was used to dilute some squash by a nurse. The diluted squash was then drunk by Mrs Blaber to assist her in swallowing her medication.Joan died six days later of respiratory failure as a result of chemical pneumonitis, which had been caused by the ingestion of the floor cleaner.An Article 2 Inquest was held before a Jury. After hearing all the evidence, the Jury returned a narrative conclusion, that:
- There was widespread confusion surrounding the jug system that was in place and that jugs were being misused.
- Understanding and implementation of cleaning procedures were inconsistent and inadequate amongst agency and the NHS Trust cleaning staff.
- Management failed to direct and monitor staff.
After the Jury had delivered its conclusion the Senior Coroner for Brighton and Hove, Miss Veronica Hamilton-Deeley criticised the Trust for 'serious failings.'A significant piece of evidence that emerged during the Inquest, was that there had been a previous similar incident at the same hospital in 2016. The Coroner was highly critical of the fact that lessons had not been learned from that previous incident.As a result, the Coroner stated that she would be writing to the Brighton and Sussex NHS Trust in the form of a Regulation 28 report, which was to set out the steps she believed should be taken to prevent any future similar deaths from occurring in this manner in the future.
Representation at Article 2 Inquests
The procedures involved both before, during and after Article 2 Inquests are of a complex nature. For a bereaved family, that is still trying to come to terms with the death of their loved one, having to become involved in this detailed legal process can be a truly daunting prospect. At Healys we have considerable and proven experience of representing families during these difficult times.We understand this highly technical area of law and are able to:
- Advise you about the type of funding that may be available to you to help pay for legal representation at the Inquest, including legal expenses insurance and Legal Aid.
- Make submissions on your behalf as to why an Article 2 Inquest is appropriate (if the status of the Inquest has not yet been confirmed).
- Represent you at the Inquest and provide any family members who are required to give evidence at the Inquest, with all the support and legal assistance that will prepare them to undertake this duty.
- Help you bring a claim for damages if the Inquest concludes that there were negligent failings in terms of the care and treatment provided and which brought about the death of your loved one.
Instructing one of Healys' experts in the field of Inquest Law, will ensure that you are represented all the way through the process and give you one less thing to worry about.Contact us at firstname.lastname@example.org for initial, confidential and without obligation advice