12KBW pupil Corinne Novell gives an update on this case and the outcome of the Court of Appeal hearing, in which challenges were brought with regard to Article 2 and seeking a fresh inquest.
Background
Ms Jodey Whiting died on 21 February 2017 from an overdose of prescription medicine. Ms Whiting had a history of mental health problems, including depression, drug dependence and a diagnosed condition of emotionally unstable personality disorder.
Ms Whiting had been in receipt of Employment and Support Allowance (‘ESA’) since September 2012. In September 2014, upon reassessment, Ms Whiting stated her suicidal ideation to the Department of Work and Pensions (‘DWP’). Come a further reassessment process in 2016, Ms Whiting’s benefits were ceased on 7 February 2017, following a non-attendance at a face-to-face appointment. Ms Whiting requested reconsideration of this decision, though this was not considered until 4 days following her death.
The Coroner, Mrs Jo Wharton, concluded that questioning the DWP’s decision to cease Ms Whiting’s benefits fell outside the remit of the Coroner’s Court. The Coroner recorded that Ms Whiting’s ESA claim was turned down in the weeks before her death and that the family considered that this caused extra stress which was a contributing factor in her death. However, upon returning a verdict of ‘suicide’, the Box for detailing ‘how’ the Deceased came about their death, was left blank.
Divisional Court
Following the inquest, two pieces of fresh evidence had been obtained. The first was an Independent Case Examiner (‘ICE’) report by Ms Wallace detailing the Department’s failings and Ms Whiting’s state of mind immediately prior to her death. [41] The second was an expert report from a consultant psychiatrist, Dr Turner, who commented on how the DWP’s decision “substantially affected” Ms Whiting’s vulnerabilities and caused a “likely deterioration in her mental state in terms of her negative sense of herself and her suicidal ideation”. [44]
The Appellant advanced four grounds for seeking a fresh inquest:
The first inquest was flawed because the inquiry conducted was insufficient at common law.
Alternatively, the inquest should have been an Article 2 inquest on grounds that both the operational and systems duty therein were breached.
The fresh evidence provided served to show that the first inquest had not revealed the substantial truth about Ms Whiting’s death.
A different conclusion would be likely at a fresh inquest.
Mrs Justice Farbey gave the lead judgment, dismissing the appeal. It was stated that:
In relation to Ground 1, the common law did not give rise to a requirement for the Coroner to make further inquiry into the Department, nor would it have been in the interests of justice to do so.
As to the operational duty stated in Ground 2, it was found that neither had the Department assumed responsibility for Ms Whiting nor, despite knowledge of her vulnerability, did they have knowledge of a specific threat to Ms Whiting’s life. As to the systems duty, the court held that the DWP’s failings were individual rather than systemic or structural. Resultantly, there was no Article 2 procedural duty.
Regarding the fresh evidence, it was held that the ICE report found substantial failings by the DWP and that there was no need now to hold another inquest to adduce further evidence on those failings. On Dr Turner’s report, a distinction was drawn between the effect of the DWP’s decision on Ms Whiting’s state of mind as opposed to on her death itself. Farbey J said “it is likely to remain a matter of speculation as to whether or not the Department’s decision caused Jodey’s suicide”. [93 of [2021] EWHC 2511 (Admin)]
Finally, it was held that the first inquest was short but fair; nothing further was required of the court.
On Appeal
The grounds raised to the Court of Appeal were far more limited. Firstly, a fresh inquest was necessary and/or desirable in light of the fresh evidence on the effect of the abrupt cessation of benefits and the likely effect that had on her mental health. Secondly, and alternatively, there were arguable breaches of the Article 2 operational duty owed to Ms Whiting.
On the first ground, the court held in relation to the first piece of evidence that it was within the scope of the Coroner’s discretion to conclude that the DWP’s failings lay outside the remit of the inquest. That decision was unaffected by the ICE reports extension investigation of such failings.
As it related to Dr Turner’s report however:
The report provided expert evidence as to the causal link between the abrupt cessation of benefits and Ms Whiting’s state of mind prior to death. Such a causal link was an issue well within the scope of a Jamieson inquest because it went to intention, a requisite element of a verdict of suicide. It should be noted that the report neither directly stated that the DWP’s decision to cease Ms Whiting’s ESA caused her to take her own life, nor did Dr Turner rule out other stressors as being causative of Ms Whiting’s suicidal state or resulting death.
The Court of Appeal did not accept that a sharp distinction could sensibly be drawn between Ms Whiting’s mental health prior to death and her death by suicide: her death was “the end point to which her mental problems brought her”. [68]
It was held that the discretion of a Coroner’s Court permits an investigation into the causation of mental health deterioration. It was, and is, open to a Coroner to record the facts which contributed to the circumstances which or may not have led to death. Lady Justice Whipple found that a distinction between physical causes and psychiatric causes of death lacked principle: the courts discretion could not be fettered by the form those factors took. Further, not only should a Coroner’s discretion to conduct investigations into establishing ‘how’ not be restricted, but the Coroner is required to investigate the question of intention, and such investigations may include inquiry into the cause(s) of disturbances of the mind.
In determining the statutory test of whether a further inquest was necessary or desirable in the interests of justice, the Court of Appeal determined that, though not necessary, it was desirable for three reasons:
For the purpose of establishing the ‘substantial truth’ of the death.
Due to the public interest in knowing of any connection between the DWP’s actions and the death.
In the event that the findings the family sought were made, the Coroner may have wished to submit a Report to Prevent Future Deaths (‘PFD’) to the DWP in order that remedial steps could be taken.
The second ground was dismissed, with the Court of Appeal finding that there was no proper basis for concluding that the DWP knew or ought to have known that Ms Whiting was at real and immediate risk of her life, nor was there any assumption of responsibility on the part of the DWP to safeguard against the risks of suicide. As such, there was no operational duty and Article 2 of the Convention was not engaged.
Comment
Article 2
The decision on the Article 2 ground is unlikely to come as a surprise to many: practitioners in this area will be well aware of the stringent requirements to engage Article 2 and give rise to duties thereunder.
However, the case makes clear that there is a public interest in knowing whether the actions of public bodies have impacted on a person’s mental state prior to death, even where no positive obligations are owed under Article 2 of the Convention. Such a public interest was found even where the body’s actions may have been only one factor amongst others which contributed to the individual’s mental state prior to death, or not stated by psychiatric evidence as being directly causative to their death.
Discretion
Though the Divisional Court stressed that the scope of the Coroner is limited by statute and that they must not veer into determining civil or criminal liability, the Court of Appeal emphasised that the discretion of Coroners was wider. They are, in addressing the ‘how’ and ‘by what means’ question, entitled (and as to determining intention, required) to investigate contributory factors and their relation to the death, beyond simply what is required to record a verdict on the direct cause of death.
Causation in Coroner’s Courts
Those reading will be aware that for causation to be established, the Coroner’s Court must be satisfied on the balance of probabilities that the event or conduct more than minimally, negligibly or trivially contributed to the death. The Court of Appeal found the Divisional Court to have erred in deciding causation essentially on a ‘but for’ basis. Causation was stated to be a “broader concept”, where it is “open to a Coroner in a suicide case to consider the extent to which acts or omissions contributed to the deceased’s mental health deterioration, which in turn led them to take their own life.” [69]
It was submitted by Counsel for the Coroner that allowing a second inquest to investigate the impact of the DWP’s failings on the deterioration of Ms Whiting’s mental health would pose practical difficulties for Coroners in future. It was said that they may “come under pressure to investigate the causes of a person’s psychiatric problems in suicide cases, which in many cases would be a difficult and controversial task”. [56] However, the Court of Appeal was reluctant to distinguish between the deterioration of an individual’s mental health and death by suicide: the two were intrinsically linked. It was stated that it would be open to a Coroner to record such a link in the form of a narrative conclusion along the lines of “the deceased took her own life as a result of a deterioration in her mental state exacerbated by the abrupt cessation of her ESA on 7 February 2017 by the Department”. [66] Such a narrative finding was considered to be brief, neutral and factual. As such, the Court of Appeal has outrightly stated that it would be legitimate to link factors causative to the deterioration of an individual’s mental health as being causative to their death, where the evidence so provides.
What is certain is that for those taking suicide cases to inquests, objective expert evidence as to the contribution a factor had on the individual’s mental state is key. Subjective opinions from the family, as to what they believed the effect that any given factor had on the individual’s mental health was, will not suffice to establish such a causal link between the factor and the death itself.
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