R v. HM Coroner of York, ex parte Speck.

The Claimants, the family of Toni Speck, judicially reviewed a decision by the Coroner as to the scope of his inquiries when undertaking an Inquest into Ms Speck’s death.

Facts

Ms Speck, a woman who had previously suffered severe mental illness, had been discharged by a mental hospital. On 2 June 2011 she was found in an agitated state in Bootham, York. The police were called, who used their powers under s136 of the Mental Health Act 1983 to remove her to a place of safety.

Ms Speck was taken to Fulford Road Police Station, where she was put in the cells in the custody suite. She was later found dead.

At the time the local health authority, York and North Yorkshire PCT, was the only PCT in the country not to provide a Health-Based Place of Safety, although funds were alleged to have been allocated to it by the NHS for this purpose.

The Coroner decided to exclude from the scope of the investigation the question of why there was not an appropriate s136 health-based place of safety at the time of Ms Speck’s death.

In court

A rolled-up hearing for permission and an application for Judicial Review was held on 3 November 2015, before Sir Brian Leveson PQBD and Holroyde J in the Divisional Court of the High Court. John-Paul Swoboda appeared for the Claimants. Mike O’Brien QC represented the Coroner and Michael Rawlinson represented NHS England, the PCT’s residuary successor, as a third party.

For the Claimants, John-Paul Swoboda submitted that s136 created a duty on the state to provide a Health-Based Place of Safety to which a person in Ms Speck’s condition should have been taken. Given this, it was wrong for the Coroner to exclude the following two questions from the scope of his inquiries:

  1. If the state had complied with its duty, could this have prevented Ms Speck’s death?
  2. If it is true that funds were allocated for a Health-Based Place of Safety, then if they had been properly spent, could Ms Speck’s death have been prevented?

It was submitted that s136 creates a significant power, for the detention of a person against their will and without suspicion of them having committed an offence. Also, guidance issued by various emanations of the state (including the NHS) stressed that health authorities should provide Health-Based Places of Safety, ideally in hospitals where there would be access to appropriate psychiatric care, in preference to reliance on police stations and A&E units. Against this background it was at least arguable that a duty was created, and in those circumstances it would be a breach of the Coroner’s Article 2 investigative duty to exclude this question wholly from his investigations.

The question of funding was also dealt with. It was submitted that there was evidence of local NHS authorities receiving money, alleged to have been allocated from central funds for the provision of a Health-Based Place of Safety, and using it instead to plug budget shortfalls elsewhere.

Sir Brian Leveson, President of the Queen’s Bench Division, queried the existence of a duty created by s136. The proper construction of the powers contained in the section, and the duties it was submitted that were implied, was of central importance to the question of whether the questions excluded from the Coroner’s inquiries could properly have been included. He queried also whether the allocated funds, if transferred in the manner suggested by the evidence referred to, were truly ring-fenced for the provision of a Health-Based Place of Safety.

For the Coroner, Mr O’Brien QC submitted that there was no duty at law to provide a Health-Based Place of Safety. He outlined the three categories of evidence to which a coroner must address his mind: first, that which he is statutorily obliged to consider; second, that which in his discretion he may consider if, in his view, it reaches the necessary evidential threshold; and finally, that which is too remote and not causative, and which therefore must be excluded. In his submission the evidence related to the Health-Based Place of Safety could not fall into the first category since it was at most indirectly causative of Ms Speck’s death: this meant that it fell to be considered under the Coroner’s discretion, and in the circumstances he had been right to exclude it.

Mr O’Brien went through the process followed by the NHS and other agencies in arriving at a recommendation to provide a Health-Based Place of Safety, which was eventually opened in 2014; rather than being evidence of a duty badly complied with, he submitted that this was evidence only of policy development, from which no duty could be inferred. He also addressed the question of funding allocation: in his submission the Coroner’s discretion to include evidence could only be engaged on the presentation of evidence that allows the Coroner to see a substantive allegation, and there had been insufficient evidence presented to meet this threshold. This meant that it did not even fall within the Coroner’s discretion to consider this issue, notwithstanding his Article 2 obligations.

For NHS England Mr Rawlinson substantially adopted the submissions of Mr O’Brien, and elaborated on the issue of the existence of the duty and the lack of evidence engaging the Coroner’s duty. He suggested that, on the facts of the case, A&E intervention was more likely to have prevented Ms Speck’s death, and that questions relating to A&E were presently in-scope.

Outcome

Because the Inquest was scheduled to begin within the week the parties agreed to hear an indication of the outcome of the application ahead of the full reasoned judgment.

Sir Brian Leveson indicated that permission would be refused. The Inquest will begin on Monday 9th November 2015.

Comment

The statutory requirement of the Coroner to ascertain “how, when and where the deceased came by his or her death” (Coroners and Justice Act  2009, s5(1)(b) is now expressly extended to include “the purpose of ascertaining in what circumstances the deceased came by his or her death” by s5(2), in order to avoid a breach of Article 2 ECHR. This provision has had an inevitable widening effect on the scope of Coroner’s inquests, and on the sorts of factors which can now potentially be considered causative.

While a reasoned judgment is still awaited, the direction of the Court’s thinking in this case was clear enough: while Article 2 may put new causal factors in scope, it is still necessary to find a duty on which causation can “bite”. In R (Long) v Secretary of State for Defence [2015] EWCA Civ 770 it was enough that there was a general duty of care towards the deceased (in that case, six soldiers killed at an Iraqi police station in 2003), notwithstanding that there was no specific duty to provide an item (in that case, an iridium satellite phone) which, it was alleged, would have prevented the deaths. The Court was not convinced that there was such a duty on the facts of this case. The Court was also not willing to infer a duty into the background of the statute and the surrounding practice and guidance.